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THE INITIATIVE
REFERENDUM AND RECALL
 

 

The
National Municipal League Series

EDITED BY
CLINTON ROGERS WOODRUFF
Secretary of the National Municipal League

City Government by Commission

Edited by CLinton ROGERS WOODRUFF
zzmo, Cloth, $1.50 net

The Initiative, Referendum, and Recall

Edited by WILLIAM BENNETT MUNRO
zzmo, Cloth, $r.50 net

The Regulation of Municipal Utilities
Edited by CLypE Lynpon KInG
zzmo, Cloth, $1.50 net
OTHER VOLUMES IN PREPARATION

 

D. APPLETON AND COMPANY

New York Lonpon

 

173

 
NATIONAL MUNICIPAL LEAGUE SERIES

 

THE INITIATIVE
REFERENDUM
AND RECALL

EDITED BY

WILLIAM BENNETT MUNRO

 

NEW YORK AND LONDON

D. APPLETON AND COMPANY
1912
S
A268026

CopyRIGHT, 1912, BY
'D. APPLETON AND COMPANY

Published June, 1912

Printed in the United States of America
PREFACE

Tus volume represents a substantial contribution
to the further careful and thoughtful discussion of a
widely considered plan of reform. Professor Munro

_brings to his task as editor not only a comprehensive
knowledge of the subject treated—direct legislation as
it is popularly known—and a deep sympathy with the
movement to correct the undoubtedly and undisputed
evil results of representative government, but, what
is of prime importance, a sound perspective and with-
out local prejudice. .

Some of the chapters in the volume are new, hav-
ing been specially prepared for it. Others have been
taken from the substantial list of papers which have
been presented to the National Municipal League dur-
ing the past decade of years. Still others, like those
of Colonel Roosevelt and Congressman McCall, have
been selected from the current periodical discussion of
the problem. All have been brought together by Mr.
Munro in furtherance of the League’s function as an
open forum, to give both sides fairly, and to recount
results fairly, so that the publicist and student may
form an enlightened and sound opinion.

Chosen for this purpose, the articles are not the
v
PREFACE

hasty words of agitators or demagogues, but the
thoughtful utterances of public men of experience,
who appreciate the problem and its difficulties and
their own responsibilities as leaders.

The Initiative, Referendum and Recall are here,
and we are destined to hear more, rather than less, of
them. Whether they are to become permanent fea-
tures of our governmental (federal, state and munici-
pal) machinery, or merely to afford the means of cor-
recting the abuses of the present-day operation of
representative government, is a question which only
time will determine. This volume is put forth with
the expectation that it will afford definite, dispassion-
ate information and careful, disinterested argument,
so that the most may be made of the democratizing
influence of the reform and the greatest possible good
developed from the movement.

To all who have cooperated in the making of the
book the appreciative thanks of the Publication Com-
mittee of the National Municipal League (William B.
Howland, Chairman, New York; John Ihlder, New
York; Clinton Rogers Woodruff, Philadelphia; Prof.
L. S. Rowe, Philadelphia; Richard S. Childs, New
York) are herewith cordially tendered.

yi
CONTENTS

CHAPTER -
I.—Intropuctory. By the Editor: .

TI.—NATIONALISM AND PopuLAR Rutr. By Colonel
Theodore Roosevelt gl EEE Be

III.—Tue Issues or REFORM. By Governor Woodrow
Wisow 2 = at Rowen as

IV.—THE DEVELOPMENT oF Direct LEGISLATION IN
America. By Robert Treat Paine

V.—Tue REFERENDUM IN THE UNITED StaTEs. By
President A. Lawrence Lowell’ . 2

VI.—Drrect LEGISLATION AS AN ALLY OF REPRESENT-
ATIVE GOVERNMENT. By Professor Lewis
Jerome Johnson . 3 . ‘ 3 5

VII.—REPRESENTATIVE AS AGAINST DIRECT LEGISLATION.
By Congressman Samuel W. McCall

VITI.—A DeEFENcE oF Direct LEcIsLaTion. By Senator
Jonathan Bourne, Jr.

IX.—TuHE PRAcTICAL WORKINGS OF THE INITIATIVE AND
REFERENDUM IN OREGON. By Joseph N. Teal

X.—A YEAR OF THE PEOPLE’s RULE IN OREGON. By
Professor George H. Haynes . . «

wil

PACE.

52

69

92

126

139

164

194

217

233
CHAPTER

CONTENTS

XI.—Tue UNFAVORABLE RESULTS OF DrrEcT LEGISLA-
TION IN OrEcoN. By Frederick V. Holman.

XII.—Tue Use oF THE RECALL IN THE UNITED STATES.
By Herbert S. Swan

XIII.—THE RECALL As A MEASURE OF POPULAR CONTROL.
By Thomas A. Davis

XIV.—Tue REcALL In Los ANGELES.

Willard

By Charles Dwight

XV.—THE RECALL IN SEATTLE. By Fred Wayne Cailett .

XVI.—SovURCES AND LITERATURE

APPENDIX

INDEX

viii

PAGE

279

298

313

321
326
342
349
351
THE INITIATIVE, REFERENDUM
AND RECALL

CHAPTER I
INTRODUCTORY

THERE has been no more striking phenomenon in
the development of American political institutions dur-
ing the last ten years than the rise to prominence in
public discussion, and consequently to recognition upon
the statute-book, of those so-termed newer weapons of
democracy—the initiative, referendum and recall. By
the initiative is meant the right of a stated percentage
of the voters, in any state or municipality, to propose
both constitutional and ordinary laws, and to require
that, if these be not enacted forthwith by the state or
municipal legislature, they shall be submitted for rati-
fication to the whole body of voters. By the referen-
dum is meant the right of a stated percentage of the
voters to demand that measures passed by the ordinary
lawmaking bodies of the state or municipality shall
be submitted to the whole body of voters for accept-
ance or rejection. By the recall is meant the right of
the electors in any state or municipality to end by an
adverse vote the term of any elective officer before the
L
THE INITIATIVE, REFERENDUM AND RECALL

expiration of the period for which he was elected.
However opinions may differ concerning the inherent
merits and defects of these agencies of popular gov-
ernment, or concerning their compatibility with a
sound representative system, it is at all events not to
be denied that they have gained, during recent years,
a remarkable hold upon the confidence of a large
and apparently growing portion of the American
electorate.

For this growth in popularity a twofold reason
may be assigned. On the one hand it is a logical by-
product of a declining popular trust in the judgment
and integrity of elective legislators. The calibre of
the representative body, whether in state or city, is
not what it used to be, and of this deterioration public
opinion has taken due cognizance. Whatever the
reasons therefor, and they are probably too complex to
warrant easy generalization, the symptoms of legisla-
tive degeneracy have grown too plain to be disre-
garded. Resort has accordingly been had to the most
superficial of prudential measures, which is to take
away from the wicked and slothful servant even that
which he hath. For maladministration in a democracy
the electorate never regards itself to blame; the demos
postulates its own infallibility. Hence it has sought to
remedy the evils which seem to result from an unsatis-
factory representative personnel, not by the adoption of
measures designed to secure an improved grade of
officeholders, but by reducing the final powers which
the officeholders may exercise. In other words, the

2
INTRODUCTORY

growth in popularity of direct legislation evinces a
public disposition to revoke the trust rather than to
change the trustees.
In the second place, the representatives of the people
‘ have themselves shown readiness to aid the movement.
American legislative bodies do their work under seri-
ous handicaps arising from the lack of efficient
leadership and from the division of power and
responsibility which is inherent in the system under
which they are expected to perform their functions.
Thoughtful men, alike in the state legislatures and in
the large city councils of most American cities, have
come to realize that efficient legislation requires both
leadership and the centralization of responsibility ;
American legislative bodies have possessed neither. In
the absence of these features, sinister influences come
into full play upon the floors of legislative chambers.
Representatives find that they can take sides on many
questions of policy only by placing themselves in such
position that they are bound to antagonize some power-
ful organized interest, no matter which side they may
take, so that to turn the whole matter over to the issue
of a popular referendum constitutes for them the line
of least resistance. The referendum in particular has
thus become the Torres Vedras of the legislator whose
first care is for his own political future. The practice
of passing bills.to enactment “with the referendum
attached,’ has become common in many states during
recent years, and measures for which the legislature
is not ready to take full responsibility are being more
3
THE INITIATIVE, REFERENDUM AND RECALL

and more readily turned over to the electorate for
acceptance or rejection. At first an exceptional pro-
cedure, this practice has shown a tendency to seek rec-
ognition as a normal method of lawmaking; the legis-
latures have taught the voters to expect that they
shall be freely called upon, not only to select representa-
tives, but to give a direct decision upon issues of policy.
Hence appear the two outstanding reasons for the
recent development of direct legislation in Ameri-
can state and municipal government. A declining
public confidence in the efficiency and integrity of legis-
lators, and a readiness on the part of representatives
to place upon the shoulders. of the voters a responsi-
bility which ought properly to remain upon their own;
these two tendencies have combined to give direct
legislation its growing vogue.

Notwithstanding a current impression to the con-
trary, direct legislation is not new either in principle
or in practice. The initiative and the referendum are
new names for very old institutions. All ancient
democracy was direct democracy; and so far as there
was legislation in early democracies, it was direct legis-
lation. The government of the primitive Saxons, if it
may be called a government, was vested in the hands
of a popular assembly, composed of all the adult tribes-
men, and this assembly exercised directly, without the
interposition of any representative body, the whole
civil and military authority. In Switzerland, where
alone among the lands of Europe the great centripetal
influence of monarchical absolution did not make itself

4
INTRODUCTORY

strongly felt through the Middle Ages, systems of
direct popular government came early into existence
and remained until modern times. Even in America
the initiative and the referendum are among the oldest
of native institutions: they may properly be called
indigenous, for these agencies of popular government
were not borrowed by the American people from any-
where outside their own land. They were brought into
being upon this side of the Atlantic to meet the special
problems which a new government had to face. Mas-
sachusetts submitted her first constitution to a popular
referendum in 1778, and again, this time with a favor-
able response, in the following year. As a means of
ascertaining the will of the voters upon constitutional
questions, the expedient quickly found favor in other
states, and the use of the referendum as the ordinary
method of enacting organic laws in time became gen-
eral.’ The initiative, likewise, obtained recognition in
principle, at_any rate, when the first constitution of
Georgia in 1777 gave to the people the exclusive right
of proposing changes in that document. Other eight-
eenth-century constitutions, notably those of -Massa-
chusetts, Pennsylvania and New Hampshire, reserved
to the people, not the right to initiate legislation, but
what amounted to at least a permissive initiative—the

 

1 Not yet entirely so, however, for during the last twenty years
four state constitutions have gone into force without popular approv-
al namely, those of South Carolina (1895), Delaware (1897), Louisiana
(1898) and Virginia (1902).

5
THE INITIATIVE, REFERENDUM AND RECALL

right “ to give instructions to their representatives ” in
the legislature.

The use of the referendum in the process of ordi-
nary, as distinguished from constitutional lawmaking,
began in America a half-century later. The legislature

of Maryland, in 1825, referred to the people of that °

state the question of establishing free primary schools,
and stipulated that the law should go into effect only in
such counties as might pronounce in the affirmative.
Other state legislatures followed the same procedure
in. cases where the issue did not seem to be readily
determinable otherwise, and in due course provisions
began to be inserted in state constitutions requiring
that all ordinary laws affecting certain matters should

be submitted, before final enactment, to the people of °

the entire state or the voters of the counties or munici-

palities affected. Typical examples of matters upon -

which some constitutions have made the referendum an
essential preliminary to enactment are changes in the
suffrage laws, alterations in the state boundaries,
changes in the location of the state capital or of the
various state institutions, measures pledging the credit
of the state or giving state aid to private enterprises,
and modifications in the laws relating to state taxa-
tion.

But the practice of referring matters to a popular
referendum has made its most steady progress in the
realm of local government. The wide variety of
interests which often appeared to be affected by general
legislative measures relating to local administration,

6

2
INTRODUCTORY

and the seeming impossibility of providing state-wide
rules which would serve the needs and desires of all
the municipalities, large and small, soon led the state
legislatures to the practice of entrusting such matters
to the decision of the localities themselves. The regu-
lation or prohibition of the traffic of intoxicants was
perhaps the most prominent of the matters within this
category, and it is a question upon which there have
been more popular referenda in American municipali-
ties than can easily be counted. Indeed it has come to
pass that, in some states of the Union, the cities and
towns look upon the privilege of deciding this question
at an annual referendum as a sort of inalienable right
of the community. So, likewise, such matters as the
adoption of a new city charter, or the adoption of
amendments to an existing charter, the alteration of
municipal boundaries, the issue of municipal bonds,
and the granting of long-term franchises to public
service corporations, are all matters upon which the
voters of cities and towns have frequently been called
upon to pass judgment at the polls. Sometimes the
constitution of the state requires submission of such
matters; at other times the requirement is statutory
only; and in still other instances the referendum is
ordered by the authorities of the municipality itself.
To the practice of submitting matters to the voters of
a municipality, or to any portion of the whole body of
state voters, there is no serious constitutional objection.
But the state-wide referendum, that is to say, the sub-
mission by the legislature of a measure to the voters

7
THE INITIATIVE, REFERENDUM AND RECALL

of the entire state for final adoption or rejection by
them, meets the objection that such reference consti-
tutes a delegation of legislative power. And in the
absence of specific constitutional permission, such dele-
gation has usually been held by the courts to be ultra
vires of the legislature. It has been urged also that
states which adopt the mandatory initiative and refer-
endum thereby contravene that provision of the United
States constitution which guarantees to every state in
the Union “a republican form of government.” But
this idea has not as yet found support in any judicial
decision.

While the two agencies of direct legislation—the
initiative and the referendum—are logically related and
supplement each other, the latter can exist and serve
many of its professed ends without the former. And
asa matter of fact the referendum moved along during
the greater part of the nineteenth century under its
own steam. The principle of the initiative, which is
that a stated percentage of the voters of a state or
municipality shall have the right to propose a measure
and to require that such measure be submitted to the
people for their adoption, was given recognition at a
very early date in American political history. But its
progress for a full century was slow, much slower than
that of the referendum. Where it did appear in the
constitution or the laws, it was rarely brought into
operation unless it happened to be the only way in
which legislation relating to certain matters could be
brought forward. Not infrequently the initiative did

8

«
INTRODUCTORY

provide the only way. When, for example, a state con-
stitution inhibited the legislature from enacting any
special legislation for individual cities, how could the
special needs of a particular city be provided for? The
natural way is, of course, to let the citizens of a particu-
lar municipality set forth their own demands by a peti-
tion, which is, in other words, to exercise the initiative
in legislation. Constitutional provisions which forbid
the legislature from enacting laws of this, that, or the
other sort, have become steadily more numerous during
the last quarter of a century, and their increase in num-
ber has given a powerful impetus to the spread of direct
legislation. South Dakota was the first state to adopt
the initiative and referendum as normal agencies
wherewith the electors of the state might directly con-
trol the making of all ordinary laws, for an amend-
ment to the South Dakota constitution, made in 1898,
permitted the initiative to be exercised and the referen-
dum to be invoked by five per cent. of the voters.
Other states which have incorporated similar provisions
in their constitutions during the last ten years are:
Utah, in 1900; Oregon, in 1902; Nevada, in 1904; 1
Montana, in 1906; Oklahoma, in 1907; Maine, in
1908; Missouri, in 1909; Arkansas and Colorado, in
1910; Arizona and California, in 1911; and New
Mexico (referendum only), in the same year.

The provisions relating to direct legislation in these

 

1 Nevada in 1904 made provision for the referendum only; but an
amendment providing both for the initiative and the recall is now
being submitted to the voters.

2 9
THE INITIATIVE, REFERENDUM AND RECALL

various states are alike in fundamentals, but differ in
many important details. In all of them the referendum
is obligatory as a method of adopting constitutional
amendments, but in two of them, Montana and Maine,
constitutional amendments are excluded from the scope
of the initiative; that is to say, the voters of these two
states are allowed to pass upon all proposed changes in
the organic laws, but are not permitted to do the pro-
posing. In the matter of ordinary laws, moreover,
there are various limitations upon the scope of direct
legislation. A common proviso is that which excludes
from the operations of the initiative and referendum
all measures which carry appropriations for the current
expenses of state government, or for the maintenance
of state institutions. The constitutions of Maine, Mis-
souri, Montana and South Dakota contain this restric-
tion. Another limitation, which exists in practically
all the states which have adopted the initiative and
referendum, is that which exempts from their scope
all emergency measures, that is, laws which seem
urgently necessary in the interest of the public peace
or for the preservation of the public health. As a pre-
caution against the abuse of this right of the legisla-
ture to act freely and finally in emergencies, it is
usually provided that measures passed under this pro-
viso must have obtained a two-thirds majority in each
branch of the legislature. But lest this safeguard
should not prove adequate, the constitutional provisions
in some cases go further and expressly declare that
certain classes of measures may not in any case be

10
INTRODUCTORY

deemed emergency laws. Among measures so enumer-
ated, are statutes granting franchises for a longer term
than a single year, legislation authorizing the purchase
or sale of lands, and laws changing the charters of
municipalities without a local referendum.

In the machinery of direct legislation there are aiso
some marked variations. The percentage of voters
required for putting the initiative into operation is
eight per cent. in some states and five per cent. in
others.1 Oklahoma requires fifteen per cent. in the
case of constitutional amendments, but only eight per
cent. in the case of ordinary statutes. Generally speak-
ing, the same quota of voters may demand a referen-
dum upon any measure passed by the legislature. Like-
wise the procedure differs from state to state in such
matters as the basis upon which this percentage is
calculated, the methods of verifying signatures to peti-
tions, the time and place of filing petitions, and the
arrangements for giving due publicity to measures
proposed. In the last-named matter, most of the states
which have adopted the system of direct legislation
arrange for printing and distributing, at the public ex-
pense, full texts of all measures which go before the
people. Some of them have the additional provision
that arguments pro and con shall, under suitable limi-
tations, be published and sent broadcast at the cost of
the state exchequer. In South Dakota referenda may
take place only at a regular election, but in the other

 

1 In Maine the requirement is not a percentage but 12,000 voters.
II
THE INITIATIVE, REFERENDUM AND RECALL

states special elections may be ordered. Ordinarily
a méasure may be re-submitted as often as the required
number of petitioners can be found to demand it; the
Oklahoma constitution is the only one which affords
any adequate safeguard against abuses arising from
the frequent re-submission of defeated proposals. A
measure rejected by the voters of that state may not
be again referred to them within three years, save on
petition of twenty-five per cent. of the voters—a prac-
tical impossibility.

The state of Illinois has adopted a system which is -
intended to secure the advantages of direct legislation
while preserving the actual lawmaking functions of
the legislature. Measures may be initiated by popular
petition, and when so originated, go to the voters at
the polls. But acceptance at the polls does not, as in
the other states, enact the measures into law. The
action of the voters is merely advisory in effect, and.
operates as an instruction to the legislature, which
alone retains the power of actual enactment. The
laws of Texas, again, provide for initiative and refer- -
endum as agencies for framing party policy. A speci-
fied number of voters (ten per cent.) in any political
party may propose planks for the party platform and
may secure a party vote thereon. The opinion of the
party adherents, as thus expressed, becomes an instruc-
tion to all party conventions, committees and officials.

But, as has been already stated, the greatest develop-
ment of direct legislation has taken place in the field:
of municipal government. Here it has gone hand in

12
INTRODUCTORY

hand with the movement for simplifying municipal
machinery and for ousting party organizations from
that dominating place in city government which they
have long maintained. The spread of the commission
type of municipal administration has given the initia-
tive and referendum much of their present-day vogue
in new city charters. To be more accurate, one should
say that each movement has supplemented and helped
the other. <A system of city government by a single
commission of five men would doubtless have appeared
to possess great possibilities of danger and would
hardly have reached its present degree of popular-
ity had not the sponsors of the plan put forward
schemes of direct legislation as a means of replacing
the old checks and balances which the adoption of the
commission system eliminates. It is true that the cities
which first adopted the commission plan, Galveston,
Houston and other Texan municipalities, did not give
the initiative, the referendum, or even the recall a
place in their new charters. They placed their full
faith and credit in the representative type of local
democracy. That is one reason why northern cities
first looked askance at the Texas experiment. The
Des Moines plan, which is the Texas system plus pro-
visions for direct legislation and non-partisan nomina-
tions, appealed more readily to public confidence.
Government by commission has secured adoption in
over two hundred American cities. Of this number
the great majority (that is to say, in nearly all except
some of the cities of Texas) have incorporated in their

13
THE INITIATIVE, REFERENDUM AND RECALL

new commission charters some sort of provision for
the initiative or referendum.

As in the state constitutions, the city charter pro-
visions relating to direct legislation are alike in prin-
ciple and varying as to details. Speaking broadly, the
voters of the city have the right, by presenting peti-
tions bearing a prescribed number of signatures, to
propose any municipal ordinance or other local meas-
ure. The percentage of signatures required is, of
course, higher than that demanded in state affairs: it
ranges from fifteen to twenty-five per cent.1 Such
proposals go before the whole city electorate at the
next regular polling, provided the date of such polling
be not more than a few months away; otherwise
special elections may be held. Similarly the charters
usually provide that no ordinance or order of the
municipal council (or commission) shall go into force
for a certain number of days, during which interval
petitions asking that the ordinance be referred to the
voters may be presented. If such petitions bear the
required number of signatures, the ordinance can go
into effect only on acceptance at the polls; if valid peti-
tions be not presented within the interval, the ordinance
goes into effect.

Both in state and city governments the machinery
of direct legislation has been frequently set in motion
during the last half-dozen years. In Oregon the sys-

 

1A table showing the exact percentages in all commission-gov-
erned cities may be found in E. S. Bradford’s “(Commission Govern-
ment in American Cities” (New York, r911), 223-233.

14
INTRODUCTORY

tem has been put to an extensive and increasing use
at every state election since its incorporation in the
constitution ten years ago. At the election of 1910 no
fewer than thirty-two projects of legislation were sub-
mitted to the voters of the state,! and there are indi-
cations that the ballots of 1912 will have also made
free use of the system or quite enough, at any rate, to
demonstrate that where provisions for direct legisla-
tion go on the statute-book they are not at all likely
to remain inactive.

No question of present-day political discussion
affords grounds for wider, yet thoroughly sincere, dif-
ferences of opinion than the relative merits and de-
fects of direct as contrasted with representative
legislation. Men differ honestly, not only as to
the soundness of the principles upon which the initia-
tive and referendum are based, but also as to the
immediate and ultimate effects of their actual use.
One reason for this can be found, perhaps, in the fact
that the propaganda for direct legislation embodies not

«only a policy but a protest, and upon the necessity
for any protest of such violence against the existing
system there is an added opportunity for divergence
in opinion. Proposals for the establishment of the
mandatory initiative and referendum have derived
much of their impetus and support, not from a popu-
lar conviction that they promise a wholly satisfactory

 

1These are printed in C. A. Beard and B. E. Schultz’s “Docu-
ments on the Initiative, Referendum and Recall” (New York, 1912),
385-389.
15
THE INITIATIVE, REFERENDUM AND RECALL

method of lawmaking, but from a widespread impres-
sion that only through these agencies can some present-
day legislative abuses be eradicated. American public
opinion has grown more vigorous, more active, and
more intelligent during the last decade. At no time
in our history, indeed, has it been more adequately
informed upon great political, economic and social
questions, for in no previous period have the agencies
of popular information been so ample. Being in-
formed, public opinion has become eager to assert
itself in legislative policy, and it would doubtless be
content to do this through the orthodox channels of
representative government if this seemed wholly feas-
ible. But a large section of the electorate has come
to the conclusion that these channels do not afford
adequate facilities for the assertion of popular
sovereignty. Nor is this conviction confined to any
loose-thinking element among the voters. When one
of the most observant among contemporary stu-
dents of American political currents can express the
conclusion that ‘ public opinion was never more help-
less to obtain its purposes by ordinary and stated
means,’ ! it can scarcely be urged that the old ma-
chinery of democracy is fulfilling its professed ends to
the satisfaction of all.

Popular distrust of the present system of law-
making is undeniably widespread and deep. But it is
not based upon the idea that the representatives of

 

1See below p. 74.
16
INTRODUCTORY

the people are incompetent to do their duty. Rather
it arises from the notion that they are prevented from
doing it. And these preventing influences, in the popu-
lar mind, are various organized interests—political
machines and economic corporations—whose wishes
do not usually run parallel to those of the electorate.
To be logical the protest ought to be directed against
the practice of sending to the legislature and to the
municipal councils men of insufficient integrity who
allow themselves to be controlled by sinister influences.
But public opinion is not inclined to be logical in the
protests which it makes. Whatever the flaws of repre-
sentative democracy, the people are loth to put the
i blame therefor upon their own shoulders. The voters
will change the system, but not their own ways.
Grounds for popular protest against the control
of representative bodies by self-seeking interests there
are, of course, in plenty. Conditions that have long
existed and still exist in at least a dozen states and in
scores of municipalities afford abundant proof that
whether or not the voters get what is advisable for
them to have in the matter of legislation, they certainly
do not always get what the majority of them want.
And under the representative system, as it has been
administered in most parts of the country, it would be
strange to find things otherwise. When representa-
‘tives are nominated in party conventions dominated by
political bosses and elected by a ballot which embodies
every feature that ingenuity could devise for befog-
ging the voter; when these representatives are set to

17
THE INITIATIVE, REFERENDUM AND RECALL

perform their functions of legislation under a sys-
tem which eliminates all possibility of firm leader-'
ship and presents every facility for shifting responsi-
bilities, it is idle to expect that the statute-book will
be a mirror of public opinion.

Somewhat curiously, however, it is only within
very recent years that any serious attempts have been
made to clear the representative system of these im-
pediments to its proper working by the introduction
of such features as direct nominations, the short bal--
lot, and improved methods of procedure in legislative
bodies. For a long time remedial measures took lines .
which were not, and could not be productive of marked
improvement. Popular distrust of representatives
manifested itself first of all, for example, in the prac-
tice of curbing legislative freedom. Whenever state
constitutions were revised, new limitations upon legis-
lative discretion were inserted until one could almost
say that in some states the constitutional convention
(with its work subject to popular ratification) has be-
come the medium of all fundamental legislation, while
the state legislature is relegated to the function of pro-
viding for odds and ends during the years intervening
between periodical revisions of the constitution.
Whenever, through rise of new conditions, a state
legislature develops a new field of discretionary action,
the next constitutional convention is quite apt to put
a hamper upon such legislative freedom by defining

 

"J. Q. Dealey, ‘‘General Tendencies in State Constitutions " in
American Political Science Review, February, 1907, pp. 200-212,

18
INTRODUCTORY

the principles upon which the new conditions shall be
met. Some state constitutions prescribe that the legis-
lature shall meet only in alternate years, and some
place a limit upon the number of days it may continue
in session—constitutional provisions which seem to
take for granted that the activity of legislatures is a
somewhat necessary evil that ought not to be borne
beyond a certain point. None of these measures is in
the direction of improving the calibre of legislators—
none of them aims to facilitate the work of legisla-
tures. All of them are based upon the strange notion
that the work of a representative body can be improved
by curtailing its freedom, and, pari passu, its responsi-
bility. The most effective way to degrade any official
chamber and to make service in it unworthy of sub-
stantial men in the community is to take away its
capacity for becoming a public nuisance if it chooses
to be such. A body which can do no harm can, by
‘the same token, do little good, and public opinion will
not be long in discovering the fact. Constitutional
hampers upon legislative discretion have availed, for
the most part, only to lower the calibre of men elected
to lawmaking bodies.

Following abortive attempts to secure any marked
improvement in the quality of legislation by reducing
legislatures to the plane of ordinance-making bodies
and by giving the real legislative power to periodic
constitutional conventions, there have been efforts,
rather half-hearted, however, to improve the methods
under which representatives are selected. The direct

19
THE INITIATIVE, REFERENDUM AND RECALL

Z
primary laws adopted in a dozen or more of the states
and applied to scores of cities during the last few
years, the removal of party designations from the bal-
lot, preferential voting, corrupt practices laws, the re-
duction of the municipal council in size and the
increase of its powers—all these are measures which
aim directly at securing better representatives, and
which, if given adequate opportunity, will almost cer-
tainly accomplish much in that direction. The recent
experience of states and municipalities seems to war-

rant the hope that most of the existing political ail-:

ments can be eradicated by specific remedies directed
straight against the local seat of trouble. But this
process takes time and requires a patience which public
opinion does not seem ready to exercise. The direct

legislation propaganda is an evidence of popular impa-:

tience with the slow, but reasonably sure working of
specific reforms.
The first argument in favor of direct legislation

rests, accordingly, upon the allegation that existing .

legislative methods and results are unsatisfactory to
the majority of the electorate; that representatives do

not properly represent; and that the reforms under-.

taken hitherto have not changed and are not likely to
change that situation. But the sponsors of the initia-
tive and referendum do not rest their whole case, or
even a large part of it, upon this point. They claim
for their proposals many positive merits which do not
connect themselves directly with the faults of the exist-
ing representative system. Emphasis is laid, for ex-
20
INTRODUCTORY

ample, upon the educative value of direct legislation.
By means of the initiative, a spirit of legislative
enterprise is promoted among the voters; men are
encouraged to formulate political ideas of their own
and to press these upon public attention with the assur-
ance that they shall have a fair hearing. If public
welfare often suffers from public apathy; if the mass
of the voters manifest little interest in the contents
of the statute-book, this is due in large measure, it is
claimed, to the feeling of electoral helplessness which
in some states amounts to a popular conviction. In
California, during the decade preceding the adoption
of the direct legislation amendments to the constitu-
tion, it would be a gross perversion of obvious facts to
allege that the voters of the state got what they wanted
in the way of legislation. They obtained, for the most
part, what a great and influential railroad corporation
was willing that they should have. In a state like
’ ‘Pennsylvania, or in a city like Chicago, at the present
moment it would be idle to argue that the statute-
book represents the embodiment of popular ideas in
legislation. The voters of that state and that city
have endeavored on many occasions to crystallize their
wishes into legislative action; they have demonstrated
that on many matters public sentiment is pronounced
and readily ascertainable by legislators; yet they have
almost invariably found legislation unresponsive. To
‘be really representative, a government must be re-
sponsive to public opinion, and to be responsive, it
must have the machinery of close contact. Between
21
THE INITIATIVE, REFERENDUM AND RECALL

even a strong popular sentiment and the passage of a
measure to enactment, there is, under what is termed
representative government in many states and cities
of the Union, a long and difficult route, well strewn
with pitfalls. The growth in vigor of popular ideas
upon matters of state or civic policy is stunted by the
mere knowledge that this is so. Men develop ideas
only when there is at least a fighting chance that these
ideas may be borne to fruition, and the electorate is
no more than the individual writ large. Political
thought and discussion can be best stimulated, it is
suggested, by popular knowledge that these lead
straight to action. The way to get voters interested
in measures is to ask for their opinion upon measures,
not for their opinion upon men. The way to educate
the voter upon matters of public policy is to submit
measures to him in person and not to some one who
holds his proxy. The educative value of the ordinary
ballot has long since been demonstrated; and the
friends of direct legislation now urge that this be en-
hanced by making the ballot a more elaborate political
catechism. John Stuart Mill once remarked that the
“magic of property turns sand into gold.” It may be:
that the magic of responsibility can turn popular list-
lessness into public enthusiasm. At any rate the system
of direct legislation freely promises, through its advo-
cates, to make the voter realize that he is a sovereign
in fact as well as in name and to increase his serious
interest in public affairs by giving him something
more to decide than the party label of officeholders.
22
INTRODUCTORY

In keeping with this emphasis upon the educative
value of the initiative and referendum is the provision
made by most of the states and municipalities which
have adopted these features, for distribution, either in
whole or in part, at public expense, of printed informa-
tion bearing upon the different questions which go
upon the ballot. These pamphlets, which are usually
in the form of a symposium presenting the arguments
advanced by the proponents and opposers of each
proposition to be voted upon, are mailed to every citi-
zen whose name is on the voters’ list. He is expected
to read his pamphlet before he goes to the polls and
to form his own judgment as to the merits of each
proposal. In addition to this, it has become customary
for various organizations to show their interest in
some of the items by holding discussions prior to an
election, passing resolutions of advice to their own
members, and even issuing literature telling the voters
which questions upon the ballot ought, in the opinion
of these organizations, to be answered in the affirma-
tive and which in the negative. Through all these
various channels information concerning mooted meas-
ures is literally forced upon the attention of voters. It
may be urged that, despite it all, a great many voters
will remain uninformed and, through their lack of in-
formation, will register unwise decisions at the polls.
Yet it will scarcely be denied that the mass of the elec-
torate is apt to be better informed upon public ques-
tions when all this literature is cast amongst it than
when it is confronted merely with candidates and given

23
THE INITIATIVE, REFERENDUM AND RECALL

only such printed matter as bears on the qualifications
of these men. There ought to be no doubt in the minds
of those who have watched the workings of direct
legislation during the past few years, that this sys-
tem does promote popular discussions of public meas-
ures. And all such discussions have their educative
value. Whether they actually lodge sure information
in the voter’s mind, and whether he accordingly can
hope to become as sane and judicious an agent in
passing upon these measures as his elected representa-
tive is likely to be—that is a matter upon which one
cannot yet speak with any such decision.

In the realm of local government the task of edu-
cating the voter to a popular knowledge of the ques-
tions laid before him can hardly be called insuperable.
The basis, indeed, of the New England town system
of government is the principle that even matters of
very minor importance shall be decided by referenda
to the citizens, and taking the history of New England

towns as a whole, it does not appear that the voters-

have shown themselves less capable in determining
these things than a body of representatives would have
been. Most of those towns are small, it is true, but
others, like Brookline, Mass., are, in point of popula-
tion, larger than half the so-termed “ cities” of the
United States, and it does not appear that town gov-
ernment in any way loses its satisfactoriness as the
towns grow in population.

Among the objections urged against the system of '

direct legislation three or four stand out most promi-
24
INTRODUCTORY

nently. One is the allegation that it runs contrary to
the principle of representative government; that its
adoption will deprive representatives of power and
responsibility, and that the calibre of men in legislative
office will deteriorate in consequence. This is an ob-
jection which cannot be lightly brushed aside, for the
institutional history of this country during the last
fifty years is full of things which tend to afford it
support. Indeed, if there be any principle which
American political experience seems to establish, it is
the one stated in a preceding paragraph, namely,
‘that the surest way to impair the personnel of any
representative body is to reduce its powers. The ex-
pansion of constitutional limitations, with the conse-
quent narrowing of legislative authority, has unques-
tionably operated to reduce the dangers arising from
the election of incapable legislators. When the choice
- of inferior representatives does not bring serious pen-
alties upon the electorate, inferior representatives are
apt to be chosen. Public vigilance is the price of effi-
cient government only so long as the legislature holds
broad and final powers. The decline in the calibre
of American legislatures, both state and municipal, has
‘gone hand in hand with the shearing of their legis-
lative powers. And the process runs in a vicious
‘circle. When a legislature or council shows itself not
-up to the mark in the integrity or efficiency of its work,
the usual remedy has been not to increase but to
diminish its powers and responsibilities. With nar-
rowed powers it attracts a less capable set of men
3 25
THE INITIATIVE, REFERENDUM AND RECALL

and these exercise even their smaller responsibilities
less satisfactorily. So again the pruning knife comes
forth, and with the same results. This, in a word, has
been the history of city councils in most American
cities, until in the end the municipal legislature in»
cities like New York has ceased to be a coordinate
branch of municipal government, and has become little
more than the arena for an ill-tempered and almost
wholly uninfluential discussion of public affairs. In
many cities it has been eliminated altogether by tele-
scoping it with the executive.

The policy of direct legislation proposes a more -
ruthless shearing. The elaboration of constitutional
and charter limitations served: to destroy the finality
of legislative powers in many matters; direct legisla-
tion would destroy this in all things. If this further
mowing down of the final powers of representative
bodies would not conduce to a further decline in the
calibre of their personnel, then five or six decades of
American political experience have taught us nothing.
The sponsors of the direct legislation propaganda
assure us that, under the new legislative régime, public
attention will be focused upon measures rather than
upon men, which seems to carry the implication that an
unalloyed system of representative legislation pos-
sesses the vice of concentrating too much public atten-
tion upon the claims of rival candidates. That, how-
ever, is least among the failings of representative
democracy. Its shortcomings arise rather from a fail-
ure of the voters to exercise adequate care in ascer-

26
INTRODUCTORY

taining the qualifications of those who seek office and
from a general disposition to place too much reliance
upon those guarantees which a party label is supposed
to carry. It may well be doubted whether an electo-
rate which cannot be brought to discriminate with care
as among candidates can be easily brought to exercise
much discrimination as among measures. The voters
like to associate public policies with personalities, and
anything that tends to weaken the prominence of the
latter is not unlikely to react in a lessened interest
toward the former. From the assertion that resort to
direct legislation on any broad scale is almost certain
to lower the plane of popular representation and
consequently to result in a poorer quality of repre-
sentative legislation, there seems to be no getting
away. Political experience supports it too strongly
to leave ground for much hope that the result would
be otherwise.

But it is urged that the direct merits of the new
system, in the way of positive legislation, far out-
weigh this objection, even though it be given all the
emphasis that may be put upon it. The real test of
legislation in a democracy is its popularity. It matters
not how patiently and carefully a statute may be
framed by legislators; if it be not in spirit what a
majority of the voters desire, it is not a good statute
when judged by democratic standards. Now the chief
‘deficiency of laws and ordinances made in the ortho-
dox way has been, it is alleged, a failure to recognize
popular demands. And this, again, has come about in

27
THE INITIATIVE, REFERENDUM AND RECALL

part at least, because the men who have been elected to
state legislatures and city councils have too frequently
failed to realize the true function of a representative.
If representative government means what its name
implies, the real and indeed the only function of a
representative, we are told, is to represent. In defiance
of this doctrine, one naturally recalls the famous apol-
ogy of Edmund Burke to the voters of his constituency
more than a century ago, when this great parliamen-
tarian urged that the true function of a representative
is to do his constituents’ political thinking for them. He
maintained the interests of his people, Burke claimed,
against their opinions. As a principle upon which to
base a system of efficient government, there is much
to be said in support of Burke’s doctrine, but if every
representative were to act on the maxim that his own
judgment is a better guide of public interest than the
plainly expressed opinions of those whom he repre-
sents, government would be no longer representative
or popular. That laws would be, under the influence
of such conceptions of a representative’s function, more
uniform in spirit, more consistent with one another and
more dispassionate in tone, there can be little doubt.
But the relation of law to public opinion would be
less intimate, and any marked hiatus between these
two is inconsistent with the American theory of demo-
cratic government.

It has been urged, again, that the presumable readi--
ness of voters to put their names upon initiative peti-
tions without due scrutiny of the proposals contained

28
INTRODUCTORY

in the latter will force upon the electorate the necessity
of winnowing a few grains of wheat from the chaff
which will be set before them at every election. And
it is true that in those cities which have already adopted
the initiative the new process of starting measures
upon their march to a place upon the municipal stat-
ute-book has not been used very sparingly. Every
element in the community has its own particular legis-
lative privilege in quest and is apt to overestimate the
importance of such claims from the standpoint of the
general interest. The gathering of signatures has ac-
cordingly the momentum of an interested propaganda
behind it, and if the percentage of necessary signa-
tures be not set fairly high, the initiative is in danger
-of becoming a facile agency of hobby-riding at the
expense and inconvenience of, the public. It ought
to be said, however, that the collection of any large
number of signatures, under the restrictions commonly
imposed by the direct legislation laws, is not such a
simple and inexpensive undertaking as many imagine.
If the proposal directly concerns the interests of any
organized element of the community—the labor
unions, the great business corporations, a political ma-
chine, or a religious body—the required signatures for
~an effective petition are not ordinarily difficult to se-
cure. These bodies have the machinery for name
gathering at hand. But where the proposal directly
touches the privileges and pockets of none of these,
-but merely the welfare of the everyday citizen who
has no particular organization to champion his inter-
THE INITIATIVE, REFERENDUM AND RECALL

ests, the quest for initiative signatures is likely to make
heavier demands, in the way both of time and of
money, than can be met without codperation. The
promotion of laws in the interest of the unaffiliated
citizen is likely to become nobody’s business.

An interesting sidelight has been thrown upon this
matter by the working of those provisions relating to
nomination by petition which are contained in the
present Boston charter. Candidates for election to
the city council must be placed in nomination by peti-
tions bearing the names of at least five thousand quali-
fied voters—less than five per cent. of the total electo-
rate. It was predicted, when the adoption of this
charter provision was under discussion, that the re-
quirement was too lenient and that it would be too
easy for a man to get his name upon the ballot. Sub-
sequent events have proved that where candidates have
the support of a political machine the requirement is
easily complied with. A nomination paper, passed
around among city employees, can be filled in a day
or two. Similarly it has been found that aspirants
who are willing to hire workers can secure the required
names at five or ten cents per head. But when a can-:
didate is able to command neither the backing of a
political organization nor the funds necessary to pay
for signatures, the prospect set before him is sufficient
to deter all except the political beachcomber who has
nothing else to do.

It is urged that the initiative will transfer to the:
unorganized and independent elements of the elector-

30
INTRODUCTORY

ate the advantages now held almost everywhere by
organized interests, both economic and political. But
does American political experience warrant the hope
that it will do anything of the kind? It is true that
in the first flush of their newly-gained prerogatives the
independent, unorganized electors, in some states and
cities where direct legislation has been a while in
vogue, have pounded through legislation hostile to the
special interests. But these spasms of popular inde-
- pendence have not been uncommon under the repre-
sentative system of lawmaking, neither have they been
wholly ineffective. The trouble with unorganized ac-
‘tion lies in the fact that it is inevitably spasmodic and
intermittent. The sponsors of the mandatory initia-
tive have asked us to believe that, by rendering its
course of action more direct, an unorganized majority
actuated by unselfish motives can permanently thwart
the will of a well-organized minority of the electorate
acting with all the zeal and resources that self-seeking
aims can supply. If our municipal history teaches us
anything, it is that changes in the framework of gov-
ernment, in the electoral system, and in the methods
of ordinance-making do not alone suffice to block the
pathway of any measure which can command organ-
ized support and ample funds.

Objections of an allied sort are often raised against
the referendum as an agency of lawmaking. The
political history of Switzerland, where the popular
referendum has long been in operation under circum-
stances favorable to its success, shows that the people

31
THE INITIATIVE, REFERENDUM AND RECALL

in general grow tired of their legislative duties after -
the novelty of their experience has worn off, and that
a decision which passes for the will of a majority of-
the voters often represents in reality the judgment of
that minority among them which happens to be im-
mediately interested in the question. In Berne, for
example, a majority of the registered voters have
recorded themselves on only nine out of sixty-eight
questions submitted, and in only a very few instances
has any question received an affirmative vote equal
to a majority of the registered voters. Even in the
case of national referenda scarcely more than one-half
of all the registered electors pass upon the questions
submitted to them at the polls. The more one studies
the statistics of Swiss referenda, the more strongly is
one forced to the conclusion that decisions which are
popular in name are not necessarily popular in fact.
In Switzerland, as in all other democracies, the laws
represent the will, not of the whole electorate, but of
that part of it which, impelled either by public or pri-
vate motives, takes an active interest in affairs of state.
In one of the cantons a serious attempt was made,
some years ago, to ameliorate the force of this objec-
tion to the referendum by imposing a fine upon every
voter who failed to appear at the polls. The polled
vote increased as a result; but the real aim of the law
was not achieved, for many of the voters who came to
the polls under the spur of this compulsion rendered
perfunctory conformance by dropping blank ballots
into the box.

32
INTRODUCTORY

In America the showing upon this point has been
somewhat better. From 1780 to 1911 the voters of
Massachusetts passed upon sixty questions, of which
they answered forty-one in the affirmative. All were
submitted at regular elections. In only a few cases
has the total vote on these referenda approached the
entire vote polled for candidates, and in ten cases the
number of votes recorded upon the measure was less
than one-fifth of the total vote cast. In Boston, dur-
ing the last twenty years, there have been thirty-three
questions of local interest submitted to the voters.
Twenty of these (one each year) dealt with the ques-
tion of liquor licenses. On these referenda the aver-
age vote was 63.3 per cent. of the entire registered
vote, an excellent record as indicative of interest in
this question. On the other questions the average
was only 59.3 per cent. It is interesting to notice,

‘moreover, that the largest percentage was recorded

upon questions which prominently involved some spe-
cial interest. The request of a street railway corpora-
tion to put its tracks upon a certain street, the demand
of city laborers for fewer hours of labor, the attempt
of certain sections of ‘the city to eliminate the liquor
trade from their neighborhood—these were the issues
which got the most attention, and they are all matters
affecting organized interests and not things that
touched the position or the purse of the whole body of
citizens. On the other hand, matters which did vitally
affect the interests of every citizen in the community
—such as the question of adopting what virtually con-

33
THE INITIATIVE, REFERENDUM AND RECALL

stituted a new charter for Boston—elicited a much
less comprehensive expression of opinion.?

It is to be borne in mind, moreover, that our use
of the referendum in the United States has been, up
to the present time, under favorable conditions. Ques-
tions have been submitted, for the most part, at the
regular elections when most voters come to the polls
anyway. Asa rule, moreover, only a few questions
have hitherto been put upon the ballot at any one
time. But the use of the referendum on a scale so °
broad as is frequently proposed would greatly enhance
the difficulty of getting a reliable expression of the
public will. The submission of questions at special
elections held for the purpose, particularly if these
special elections should be held frequently, would cer-
tainly mitigate against the polling of a large vote. It
may well be doubted, in the light of such experience
as we have had, whether more than fifty per cent. of
the registered voters would, on the average, appear at
these special elections. We should have, in such event,
‘government by half the people for the whole people,
which is scarcely our orthodox definition of democ-
racy. The submission of many questions, moreover,
means inevitably that none will get very much scrutiny
or study. The average voter gives just about so much
time and thought to political questions on the eve of

 

1For further details see the paper by Dr. E. M. Hartwell on
“Referenda in Massachusetts” in Proceedings of the National Mu-
nicipal League, 1909, 334-353.
34
INTRODUCTORY

an election. If thirty questions be submitted to him
instead of three, they are likely to have, in sum, no
more of his thought or consideration. Two or three
questions he may and sometimes does inquire about
and form his own opinion upon. But for guidance
‘upon a score or more of matters, if these are to come
upon his ballot, he will be inclined to take the advice
of some party, organization or interest with which he
may be affiliated. In those western states and cities
where, under newly adopted systems of direct legisla-
tion the ballot has been loaded with dozens of ques-
tions often of minor importance, that is exactly what
has happened. The real voting is done, not by the
voter, but by the political committee, the taxpayers’
league, the labor union, or some other organization
whose advice on political matters he regards as coin~
cident with his own interest and whose printed pam-
phlet of instructions he takes with him to the polls.
- In one western city the politicians provided their fol-
lowers with a sheet of limp cardboard the exact size
of the ballot. Holes had been cut in this at appro-
priate places; the voter was instructed to lay the card-
board on his ballot, and, by marking his cross in each
hole, he voted on all the referenda just as the poli-
ticians desired him to vote. Those who hope, there-
fore, that the system of direct legislation will cause
every voter to inform himself concerning the merits
of each proposed measure, or that it will break the
power of political machines by making the voters do
something which the politicians cannot influence them

35
THE INITIATIVE, REFERENDUM AND RECALL

in doing, have as usual underestimated the ingenuity
of the latter.

It may be suggested, moreover, that not only does
the referendum fail in many cases to arouse that de-
gree of public interest and discussion which is neces-
sary to a large vote, but that large numbers of those
who do vote upon submitted measures are guided by .
nothing more substantial than prejudice or caprice.
It is well known to politicians, for example, that other
things being equal, the affirmative side of any ques-
tion on the ballot has a great advantage. Only a few
months ago there was a local illustration of this fea-
ture in electoral psychology when the opponents of a
proposal which went before the voters of a Massachu-
setts city had the question so framed that they would
get that advantage of being in the affirmative! The
affirmative seems, in fact, to have a bonus equivalent:
to that of the candidate whose name comes first on
the ballot. Just how great such advantages are, can-
not be determined by any safe method of computation ;
but if one accepts the opinions of active political
workers, they are sufficient in many cases to turn the
scale.

Other electoral tendencies, more or less capricious,
are disclosed by a study of the action of the electorate
upon questions that have been submitted to them. It

 

1 As originally drawn the question was as to whether a certain
public undertaking should be defrayed by the issue of bonds “‘out-
side the city’s debt limit.” The wording was changed to “within
the city's debt limit.”

36
INTRODUCTORY

is clear, for example, that the average voter carries
with him into the polling booth a considerable preju-
dice against corporate interests, and is prone to record
his voice against anything that looks like a concession
to them. When city charters provide, therefore, that
no franchise extensions or other rights may be granted
to public service corporations except with the approval
ofa majority of the voters at the polls, a serious obsta-
cle is placed in the way of granting such privileges,
however much it may be in the city’s interest to do
so. The cry against privilege in any of its forms
is easy to raise, and when raised always has effective-
ness, as do the various race and religious cries which
mischief-makers raise from time to time. Doubtless
this anti-corporation prejudice among the voters is, to
a considerable extent, not without reason: corporate
interests, by their reckless disregard of public policy
and popular opinion, have often brought it upon them-
selves. But prejudice exists, and government by
prejudice, warranted or unwarranted, is not safe gov-
ernment. When the public mind is inflamed against
an offender, though justifiably so, no one with a clear
sense of justice would urge that the offender should
have his right to life, liberty or property adjudged
by a jury which reflects the prejudice of the com-
munity rather than by a body of men qualified to act
dispassionately. When popular passions are aroused,
it is not easy to get a jury which will deal fairly
on the merits of an issue, nor yet a legislature
or council which will do the same. But all three of
37
THE INITIATIVE, REFERENDUM AND RECALL

those bodies will probably manifest a greater inclina-
tion to fairness than the whole electorate from which
their members are drawn. Where vested interests are
concerned, measures that are legislative in form are
very often adjudicative in effect. To hinge their ac-
ceptance or rejection upon the issue of an election is
accordingly to establish, in many cases, a system of
administrative adjudication by popular caprice.

On the other hand, voters show a partiality toward
certain interests and principles which may not be, and’
frequently are not, in accord with the general interest.
They are unduly lenient, as a rule, toward the claims":
of all who hold places on the city payroll. For secur- —
ing higher pay, fewer hours and favorable terms of
service, the city employee can scarcely find a more
useful expedient than the referendum. The public
feels kindly toward the man who works for the mu-
nicipality at a small daily wage; the older and less
competent he is, the more sympathetic it seems to feel.
When the employees ask for something they are apt
to get it without much scrutiny from the mass of the
voters. That is why policemen, firemen and others
who go to the legislature for measures in their own
interest are always willing to have these passed with
a proviso for a local referendum attached. Experience
seems to show that legislatures comply much more
readily with requests for permissive than for manda-
tory legislation, since they are naturally inclined to
feel that legislation of the former sort puts no final
responsibility upon them. So also the voters show a

38
INTRODUCTORY

pronounced partiality to measures which propose to
pay for public improvements out of the proceeds of
loans rather than from current taxes. It is but natural
that men should desire to have present conveniences
at the expense of future generations; hence when a
voter is asked whether he will pay for a costly public
improvement or let his grandchildren pay for it, his
answer is not difficult to forecast. For a time it was
thought that since municipal councils are inclined to
be prodigal of the city’s credit, the necessity of sub-
mitting proposed loans to the voters would afford a
salutary check. As such it has proved, however, of
little or no service. On the contrary, it has rather
favored undue borrowing by reducing the council’s
sense of responsibility for its share in the matter.
Other lines along which the electorate is apt, as
experience shows, to be guided by its prejudices or
partialities might be indicated; but enough has been
said to suggest that the expressed wish of the people
does not necessarily represent their deliberate judg-
ment. When voters are called upon with frequency
and are asked to express themselves upon all sorts
of matters the consideration which they give to each
question must be of the most superficial sort and, being
superficial, erratic. Public sentiment is proverbially
fickle as to men; it is not likely to be any less so as to
measures. As men have gone into high office on the
‘crest of a wave and have been dropped out on its
subsidence, so measures and policies of all sorts catch
the popular fancy for one season and are discarded
39
THE INITIATIVE, REFERENDUM AND RECALL

the next. It is scarcely to be expected that an in-
creased participation of the electorate in the normal
work of lawmaking will give public sentiment any
greater stability; on the contrary, the statute-book
would in all probability reflect to an even greater ex-
tent than now the fleeting opinions of people whose
political ideals are seldom very firmly anchored. All
this is reinforced by the fact that the voters, upon

questions set before them, must record categorical an- -

_ swers. They must either accept or reject a submitted
measure. There is no room for compromise. Yet
compromise has played a large part in the making of
laws under the representative system. Without it
progressive legislation would often have proved im-
possible. To ask voters for an unqualified yea or nay
is to disregard the fact that many of them do not hold
unqualified opinions and cannot fairly express their
views in categorical terms.

An objection to direct legislation, well stated in a

later chapter, is based upon the lack of harmony
between that system and the traditional American
distinction between constitutional and ordinary laws.
Constitutions, and particularly those clauses in consti-
tutions which make up a bill of rights, have been
regarded in America as bulwarks of personal liberty.
A certain sanctity has attached to these organic laws
because they have been adopted in a particularly
formal way which has included popular approval at
the polls. Ordinary laws, on the other hand, have
been the much less formal work of legislatures. But

40
>

INTRODUCTORY

with a broad use of direct legislation this distinction
would entirely disappear. Constitutions and ordinary
laws would be made and unmade by the same pro-
cedure; the people would initiate both by their peti-
tions and adopt both by their votes. There would
be no more security for personal and property rights
in one than in the other. Of course it is not at all
certain that this.outcome would be very undesirable

‘in America. In England there has never been any

distinction between constitutional and ordinary laws,
yet the liberty of the individual has not suffered
serious impairment on that account. It may be sug-
gested, moreover, that constitutional limitations de-
signed to guard private rights have in America often
overreached themselves and by so doing have offset
much of the merit they possess. The provision which
forbids the deprivation of property without ‘“ due
process of law’”’ enunciates a wholesome canon of
government; but it has too often been pressed into
service as a means of thwarting some much-needed
social and economic reforms. Yet whether the objec-
tion thereto be valid or not, it remains true that a gen-
eral use of the initiative and referendum. would sweep
away a basic principle in the American legal system.

In weighing the various merits and faults of the
initiative and referendum as set forth in the foregoing
pages much depends upon an individual’s point of
view. Men hold widely divergent. opinions, for ex-
ample, concerning the degree to which present insti-
tutions and methods have failed, in the United States,

4 41
THE INITIATIVE, REFERENDUM AND RECALL

to measure up to reasonable expectations. Yet each
man’s attitude upon that question determines the spirit
in which he approaches the new proposals. Much de-
pends, moreover, upon our individual notions concern-
ing what the populace is apt to do under different
circumstances and these notions are not usually built
upon sure information. The psychology of the crowd,
despite all that has been written on that subject by a
brilliant French author, is even yet a terra incognita
to students of political science. It is a fact, however,
that those who best know the political propensities
and caprices of the voters are the least ready to turn
over to them the decision of every-day questions.
Whether the electorate, with due education and prac-
tice, can do better than past experience has led us to
expect, is something which the next few years will
probably disclose.

The Recall.

Unlike the initiative and referendum, the recall is
not an agency of legislation but of administration. It
is the power to remove, before the end of his term, any
official elected by the voters. Although existing for
a long while in some Swiss cantons,’ it made its first

ce

American appearance under the title of the “ impera-:

tive mandate” in the Populist propaganda of two
decades ago, and was first given practical recognition
in the Los Angeles charter of 1903.2 Since that time

 

3 For example, in Berne, Argau, and Schaffhausen.
.2 Laws of California, 1903, pp. 574-575-

42
INTRODUCTORY

it has found its way into the constitutions and general
laws of several states, notably those of Oregon, Iowa,
South Dakota, Washington, Oklahoma and Califor-
nia. It has also been provided for in the special char-
ters of more than a hundred cities, most of them
municipalities which have adopted the commission
type of government.

In all the cities which have adopted the recall, with
the exception of Boston, the provisions relating to it
are substantially the same. Ordinarily its operation

- applies only to elective officers; but in one or two cases

it extends to appointive officials as well. The move-
ment to recall an officeholder before the expiry of his
term is invariably begun by a petition which sets forth
the reasons for the proposal. This petition, when it
has received the signatures of a stated percentage of
the qualified voters, is presented to some designated
municipal authority.1_ The petition is duly examined
by the appropriate officer; the signatures are verified;
and if the requirements are found to have been com-
plied with, a recall or removal election is ordered,
usually by the city council. In some cities it is per-
missible, in case the number of signatures is not suffi-
cient, to file additional names in a supplementary
petition. And although there have been no specific

 

1 This stated percentage ranges ordinarily from fifteen per cent.
to twenty-five per cent.; but in a few cities it is higher. Sometimes
it is a percentage of the registered vote; in other cases a percentage
of the vote cast at the last local election. The designated officer is
usually the city clerk.

43
THE INITIATIVE, REFERENDUM AND RECALL

provisions in city charters covering the point, the
courts decided, in a recent Seattle case, that voters
whose names appeared upon a petition for the recall
of an officer might withdraw their names at any time
prior to the date upon which the petition was finally
certified as sufficient.*

When a valid petition has been transmitted to it,
the city council or other competent authority fixes a
date for the removal election, which must be within
the period fixed by law. Usually it is provided that the
officer whose removal is sought shall have his name
placed upon the ballot at this election unless he re-
quests otherwise. Other candidates for the office may
be placed in nomination by the usual methods. The
recall election is conducted, so far as polling places
and the other machinery of voting are concerned, like
any regular election. Unless the incumbent receives
the highest number of votes among the candidates
offering themselves, he is recalled; that is, he leaves
office and his place is taken by that candidate who
did receive the largest number of votes. Ordinarily
this successor fills out only the unexpired term. It is
frequently provided, in order to prevent abuses of the
recall procedure, that no removal petition may be filed
until after an officer has been at least six months in
his post and that thereafter a petition may not be filed
more than once during his term of office. The con-:
stitutionality of the recall has invariably been upheld

 

1 See below, p. 331.
44
INTRODUCTORY

by the courts. Following its adoption in city charters
the recall has gained recognition in the constitutions
of Oregon and California, in the latter of which it
is applicable not only to the executive and legislative
departments of government but to the judiciary as
well.

Since its first adoption by an American city eight
years ago the recall has been put into operation a
number of times, notably in Los Angeles and in
Seattle. In the former city a member of the city
council was removed from office in 1904 and in 1906
a movement to recall the mayor was forestalled by the
latter’s resignation. Seattle in 1910 ousted its mayor
after a violent contest and the friends of the new in-
cumbent have since been kept employed in repelling
persistent efforts to dislodge him in turn. In several
other cities the expedient has been used, sometimes
achieving its end and sometimes failing to do so. As
yet there has been no instance of the recall of a state
officer under the provisions which have been placed
in state constitutions within the last four years.

In the amended Boston charter of 1909 a modified
system of recall was established in connection with
the mayoralty. In providing for a four-year mayoral
term the framers of those amendments deemed it ad-
visable to entrust to the voters the power of termi-
nating a mayor’s tenure at the end of his second year
in office. It happens that the state elections in Massa-
chusetts take place in November and that the Boston
municipal elections are held in January following. At

45
THE INITIATIVE, REFERENDUM AND RECALL

the state elections, accordingly, the voters are asked
(and this without the filing of any petition on their
part) whether they desire an election for the post of
mayor at the forthcoming January polling. If a ma-
jority of the registered voters pronounce in the affrm-
ative then the incumbent of the mayoralty vacates his
office and a new election for a four-year term is held.
The question goes on the state ballot once every four
years, that is, whenever a mayor’s term is halfway
run.

The chief argument in favor of the recall, as ad-
vanced by friends of the expedient, is its efficacy as
an agent of unremitting popular control over men in
public office. It is a perpetual reminder of preélection
promises. It compels each officeholder to view his
every public act in the light of what the voters will
think of it. It is an application, in a wider sense; of .
that principle of ministerial responsibility which is a
feature of English government and which enables the
course of public policy to be altered at any moment
by the recall of a cabinet at the hands of the House
of Commons. It assumes that the relation of the
voters to an elective officer is that of principal and
agent—that the agent’s power of attorney may be re-
voked at any time. It is, accordingly, a means of

 

1 The question appeared on the ballot in November, 1911, but-no
serious effort was made to influence the popular verdict either way.
As the total registered vote of Boston is about 110,000 it would have
taken over 55,000 affirmative votes to recall the mayor. The result
was affirmative 37,262, negative 32,501.

46
INTRODUCTORY

keeping all officials responsible and responsive to pub-
lic opinion.
That the possibility of recalling officers is likely to

. achieve some of these things is scarcely to be denied.

The deference of an office-seeker to public sentiment
is proverbial; and with a provision for his recall on

‘the statute-book the official is likely to be kept per-

petually in that frame of mind. There is little question
concerning the spur to official responsiveness which
the recall provides. The only question—and an im-
portant question it is—concerns the effect which it

‘ will have upon an officer’s judgment and hence upon

his efficiency. Where the duty of an official is solely

' that of reflecting public sentiment—and that seems to

be the only function of councillors elected from wards.

. to large municipal bodies—the sponsors of the recall

provision are able to make their strongest case. Large
city councils and the ward system of election have as
their only prop the strong popular feeling that all
parts of the city and all elements of its population
ought to be represented in the city government and
particularly in that branch of it which governs public

‘expenditure. One may defensibly take issue with this

proposition; but as long as it is given recognition as
a working principle of city government, as it still is
in most cities of the country, it will scarcely be gain-
said that those whose chief function is to reflect
varieties of local sentiment should be made to do this
in the most thorough way. And the recall provision
is doubtless a useful agency in that direction.
47
’

THE INITIATIVE, REFERENDUM AND RECALL

But there are many city officers upon whom is

laid not only the task of reflecting local opinion, but -

something more. In its administrative departments
the city requires men who will combine a responsive
attitude with some executive skill and judgment. The
emphasis, indeed, ought to go upon the latter qualities.

The recall provision, however, puts the whole emphasis °

upon the former. It may be urged, perhaps, that there
is really no difference between these two—that an offi-
cial who shows skill and judgment in the interests of
the city is responding to the wishes of its citizens. It
does not take much political experience to teach one,
however, that the interests of the municipality as these
clearly appear to a competent administrative officer,
and the wishes of the citizens as they are apt to ex-
press them:at the polls, come far from being always
the same thing. The case for the recall provision in
relation to administrative officials is correspondingly
weakened. With respect to judicial officers it is weak-
est of all unless we are prepared to accept the revo-
lutionary doctrine that the duty of a judge is that of
a supplementary lawmaker.

A point commonly urged in favor of the recall
is that it permits the lengthening of official terms
without thereby risking the establishment of a

bureaucracy. Short terms, particularly for adminis- ‘

trative officers, have been a vice of local government.
They form one of the chief reasons why city adminis-
tration in the United States has failed to develop any
sound traditions of efficiency. The only ground upon

48
INTRODUCTORY

which one can pretend to justify the practice of elect-
ing comptrollers, or street commissioners, or even
mayors, for terms of one or two years is the desir-
ability of holding these officials directly accountable
to the electorate. If the recall provisions, by afford-
ing a potential means of ousting an officer who proves
unsatisfactory, can promote the practice of leaving in
office for long terms those who prove themselves com-
petent, it will have rendered a considerable service to
the cause of good municipal management. The extent
of this service must depend, however, upon the fre-
quency with which the voters bring the recall machin-
ery into operation and the motives which actuate them
in doing so. If political or capricious motives dom-
inate their action and if men are accordingly removed
from office, not because they are inefficient but because
they are politically unpopular, the service rendered by
the recall machinery will be worse than worthless. We.
should then have no more than long terms in name
and short terms in fact. One trouble with the short
term is that it forces an officer to waste much of his
-- time and energy in the task of maintaining his political
‘fences; with the possibility of a recall election con-
stantly on the horizon this trouble would not be elim-
inated by the merely formal lengthening of an offi-
cial’s term.

It was from this angle that the framers of Boston’s
amended charter approached the proposal to incor-
porate the recall provision in that enactment. Their
decision was that the mayor’s term should be length-

49
THE INITIATIVE, REFERENDUM AND RECALL

ened from two to four years; but that he should be ;
removable by the voters at the end of two years.

They provided, therefore, a recall arrangement which

can be brought into operation at a stated point in the -
mayor’s term, and not at any point as is commonly

permitted in other cities. They stipulated, moreover,

that a majority of the registered vote and not a mere

plurality of polled votes should be necessary to effect

the mayor’s removal. In other words, the Boston char-

ter provides a system whereby the voters express their

opinion, when his term is half completed, upon the

mayor’s record in office and not upon his qualifica-
tions as compared with those of some other candidate

or candidates whose names appear upon their ballot.

If the pronouncement by the voters is decisively

against the mayor—that is, if a majority of the regis- -
tered voters declare against his continuance in office

—the decision is effective. In brief, the Boston idea

is that a mayor, when elected for a four-year term,

should be allowed to finish it out unless the public in-

terest clearly demands his removal.

The plan of popular election, as a means of getting
competent men for municipal administrative posts, has
never been crowned with much success either in Amer-
ica or elsewhere. Administrative skill is not to be
had, apparently, by asking those who profess it to
come forward as candidates for election. All this is
so well recognized that the practice of seeking admin-
istrative officials by popular election might have been
wholly abandoned by this time were it not for objec-

50
INTRODUCTORY

tions, which seem to be well rooted in the public mind,
against the only other method, namely, executive ap-
pointment. Making offices appointive opens the way
to efficiency ; but when men are appointed to office for
long terms they tend to forget that the public is a
fastidious master. The recall, it is urged, can be used
to secure the advantages of both these methods—elec-
tion and appointment—without the shortcomings of
either. If men be appointed to office for long terms
‘*but allowed to hold office subject to recall should oc-
casion arise, the possibility of reconciling efficiency
with accountability comes into view. The right men
- can be appointed, and after appointment, these can be
held to the proper attitude.
The foregoing assumes, however, that the power
-- to recall an officer will be used sparingly and for good
reason only. Otherwise it would be no more than an
effective instrument of intimidation and blackmail.
Nothing indeed can be predicted with certainty con-
cerning the merits and faults of the recall in operation
until after it has had a trial over a considerable period
and under varying degrees of political stress. If it
can develop a good tradition, it may prove a highly
useful addition to our machinery of local government.
At its best it has great potentialities for good. But
at its worst the recall contains endless possibilities of
political demoralization and harm.
CHAPTER II
NATIONALISM AND POPULAR RULE?

In Mr. Herbert Croly’s “ Promise of American
Life,”? the most profound and illuminating study of
our national conditions which has appeared for many
years, especial emphasis is laid on the assertion that
the whole point of our governmental experiment lies
in the fact that it is a genuine effort to achieve true
democracy—both political and industrial. The exist-
ence of this nation has no real significance, from the
standpoint of humanity at large, unless it means the
rule of the people, and the achievement of a greater
measure of widely diffused popular well-being than
has ever before obtained on a like scale. Unless this
is in very truth a government of, by, and for the
people, then both historically and in world interest
our national existence loses most of its point. Nom-
inal republics with a high aggregate of industrial pros-
perity, and governed normally by rich traders and
manufacturers in their own real or fancied interest,

 

1 This chapter by Colonel Theodore Roosevelt is reprinted by
permission from The Outlook of January 21, 1911.

2 New York, The Macmillan Co., 1909.
. 52
NATIONALISM AND POPULAR RULE

but occasionally by violent and foolish mobs, have
existed in many previous ages. There is little to be
gained by repeating on a bigger scale in the Western
Hemisphere the careers of Tyre and Carthage on the
shores of the Mediterranean.

If there is any worse form of government than
that of a plutocracy, it is one which oscillates between
control by a plutocracy and control by a mob. It
ought not to be necessary to point out that popular
rule is the antithesis of mob rule; just as the fact that
the nation was in arms during the Civil War meant
that there was no room in the country for armed
mobs. Popular rule means not that the richest man
in the country is given less than his right to a share
in the work of guiding the government; on the con-
trary, it means that he is guaranteed just as much
right as any one else, but no more—in other words,
that each man will have his full share as a citizen,
and only just so much more as his abilities entitle him
to by enabling him to render to his fellow-citizens
services more important than the average man can
render. On the other hand, the surest way to bring
about mob rule is to have a government based on
privilege, the kind of government desired not only by
the beneficiaries of privilege, but by many honest re-
actionaries of dim vision; for the exasperation caused
by such a government is sure in the end to produce a
violent reaction and accompanying excesses. The
Progressives, in fighting for sane and steady progress,
are doing all they can to safeguard the country against

53
THE INITIATIVE, REFERENDUM AND RECALL

this kind of unhealthy oscillation, of government by
convulsion.

A number of Progressive conventions have re-
cently enunciated the following among other principles
as necessary to popular government:

Drastic laws to prevent the corrupt use of money
in politics.

Election of United States senators by direct vote.

Direct primaries for the nomination of elective
officials.

Direct election of delegates to national conven-
tions, the voter to express his choice for president on
the ballot for delegate.

The introduction of the initiative, referendum and
recall.

In Oregon most of these principles are already
law. The recent Republican state platform of Wis-
consin has declared for all of these principles; and
this declaration is entitled to very serious considera-
tion, for Wisconsin has taken a leading position in
Progressive legislation and has to her credit a note-
worthy record of laws for social, political and indus-
trial betterment, which laws have been proved in
actual practice and have worked well.

Most Western Progressives, and many Eastern
Progressives (including the present writer), will as-
sent to these five propositions, at least in principle.
I do not suppose that there can be any dissent from
the need of passing thoroughgoing acts to prevent
corrupt practices. The movement for direct primaries

54.
NATIONALISM AND POPULAR RULE

is spreading fast. Whether it shall apply to all elec-
tive officials or to certain categories of them is a mat-
ter which must be decided by the actual experience of
each state when the working of the scheme is tested
in practice. There is a constantly growing feeling
also in favor of the election of United States senators
by direct popular vote. On this point, as indeed on
most of these points, there is room for honest diver-
gence of opinion, but I believe that the weight of
conviction is on the side of those who would elect
the senators by popular vote, and that the general
feeling is inclining this way. The arguments made
against such method of election are practically the
same as the arguments originally made against the
election of president by popular vote; and the electoral
college was designed on precisely the same theory in
accord with which it was supposed that the legislature
rather than the people should be trusted to choose
the best type of senator. Such change in senatorial
elections would no more alter the fundamental prin-
ciples of our government than they were altered by
the change in presidential elections. At present, al-
though the form of an electoral college is preserved,
the vote for president is really a direct popular vote;
and this absolute reversal in practice of the theory of
the constitution as regards the choice of the most im-
portant public officer in the land offers a curious com-
mentary on the attitude of those who declaim against
all change by practice in the construction of the letter
of a written constitution. Again, and for the same
55
THE INITIATIVE, REFERENDUM AND RECALL

reason, it seems to me an admirable plan that there
should be a direct election of delegates to national
conventions, with opportunity for the voter to express
his choice for president and vice-president; although,
of course, such latitude of action must be left to the
delegate as to permit his exercising his own judgment
if his first or second choice proves impossible. This
is merely slightly to alter the present-day practice
when delegates are instructed by state and district
conventions to vote for a given candidate.

The proposition that will excite most misgiving
and antagonism is that relating to the initiative, refer-
endum and recall. As regards the recall, it is some-
times very useful, but it contains undoubted possibili-
ties of mischief, and of course it is least necessary in
the case of short-term elective officers. There is, how-
ever, unquestionably a very real argument to be made
for it as regards officers elected or appointed for life.
In the United States government practically the only
body to whom this applies is the judiciary, and I shall
accordingly treat the matter when I come to treat of
nationalism and the judiciary.

There remain the initiative and referendum. As
regards both of these, I think that the anticipations of
their adherents and the fears of their opponents are
equally exaggerated. The value of each depends
mainly upon the way it is applied and upon the extent
and complexity of the governmental unit to which it
is applied. Every one is agreed that there must be a
popular referendum on such a fundamental matter as

56
NATIONALISM AND POPULAR RULE

a constitutional change, and in New York State we
already have what is really a referendum on various
other propositions by which the state or one of its
local subdivisions passes upon the propriety of action
which implies the spending of money, permission to
establish a trolley line system or something of the
kind. Moreover, where popular interest is sufficiently
keen, as it has been in the case of certain amendments
to the national constitution at various times in the
past, we see what is practically the initiative under
another name. I believe that it would be a good thing
to have the principle of the initiative and the referen-
dum applied in most of our states, always provided
that it be so safeguarded as to prevent its being used
either wantonly or in a spirit of levity. In other
words, if the legislature fails to act one way or the
other on some bill as to which there is a genuine
popular demand, then there should unquestionably be
power in the people through the initiative to compel
such action. Similarly, on any bill important enough
to arouse genuine public interest there should be power
for the people to insist upon the bill being referred to
popular vote, so that the constituents may authorita-
tively determine whether or not their representatives
have misrepresented them. But if it is rendered too
. easy to invoke either process, the result can be only
mischievous. The same considerations which are more
and more tending to make thoughtful people believe
that genuine popular control is best exercised through
the short ballot have weight here also. There are

5 57
THE INITIATIVE, REFERENDUM AND RECALL

plenty of cases in which, on a given issue of sufficient
importance, it is better that the people should decide
for themselves rather than trust the decision to a body
of representatives—and our present-day acceptance of
this fact is shown by our insistence upon a direct vote
of the state when the state adopts a new constitution.
But ordinary citizens in private life—such as the pres-
ent writer and most of his readers—neither can nor
ought to spend their time in following all the minutiz
of legislation. This work they ought to delegate to
the legislators, who are to make it their special busi-
ness; and if scores of bills are habitually presented
for popular approval or disapproval at every election,
it is not probable that good will come, and it is certain
that the percentage of wise decisions by the people will
be less than if only a few propositions of really great
importance are presented. It is necessary to guard
not only against the cranks and well-meaning busy-
bodies with fads, but also against the extreme laxity
with which men are accustomed to sign petitions.
. There was a curious instance of this trait at the recent
elections in Cincinnati. Aside from the regular nom-
inees, there was in one district a man nominated on
petition. He had enough names put on the petition
to insure, his running, but at the election he got only
about one-seventh as many votes as there were names
_on the petition. A much larger proportion of men ,
,should be required to petition for an initiative than
. for a referendum, but in each case the regulations both
as to the number of names required and as to addi-
58
NATIONALISM AND POPULAR RULE

tional guarantees where necessary should be such as
to forbid the invocation of this method of securing
popular action unless the measure is one of real im-
portance, as to which there is a deep-rooted popular
interest. Oregon has already tried the principle of
the initiative and the referendum, and it seems to have
produced good results—certainly in the case of the
referendum, and probably in the case of the initiative.
This, of course, does not necessarily mean that the
principle would work well in all other communities,
and under our system it is difficult to see at present
how it could normally have more than a state-wide
application. In Switzerland it has been applied both
in the cantons, or states, and in the federal or national
government, and it seems on the whole to have worked
fairly well. Those who anticipate too much from the
new system, however, would do well to study its work-
ings in Switzerland. There have now and then been
odd results. Recently by the use of the initiative a
certain bill was proposed to the federal legislature.
There was such a strong demand for its passage, as
shown by-the vote on the initiative and by the general
popular agitation, that the legislature passed it with
but one dissenting vote. At the ensuing election the
representative who had cast the dissenting vote was,
because of having done so, beaten; but on the referen-
dum the people defeated the measure itself! They
demanded it on the initiative, all their representatives
in the legislature with one exception voted for it on
its passage, they beat the one man who had voted
59
THE INITIATIVE, REFERENDUM AND RECALL

against it, and then on the referendum they defeated
the bill itself.

Unquestionably an ideal representative body is the
best imaginable legislative body. Such a body, if com-
posed of men of unusual courage, intelligence, sym-
pathy and high-mindedness, anxious to represent the
people, and at the same time conscientious in their
determination to do nothing that is wrong, would so
act that there would never come the slightest demand
for any change in the methods of enacting laws. Un-
fortunately, however, in actual practice, too many of
our legislative bodies have not really been representa-
tive; and not a few of the ablest and most prominent
men in public life have prided themselves on their
ability to use parliamentary forms to defeat measures
for which there was a great popular demand. Spe-
cial interests which would be powerless in a general
election may be all-powerful in a legislature if they
enlist the services of a few skilled tacticians; and the
result is the same whether these tacticians are un-
scrupulous and are hired by the special interests, or
whether they are sincere men who honestly believe
that the people desire what is wrong and should not
be allowed to have it. Normally a_ representative
should represent his constituents. If on any point of
real importance he finds that he conscientiously differs
with them, he must, as a matter of course, follow his
conscience, and thereby he may not oniy perform his
highest duty, but also render the highest possible serv-
ice to his constituents themselves. But in such case

60
NATIONALISM AND POPULAR RULE

he should not try to achieve his purpose by tricking
his constituents or by adroitly seeking at the same
time to thwart their wishes in secret and yet appar-
ently to act so as to retain their good will. He should
never put holding his office above keeping straight
with his conscience, and if the measure as to which
he differs with his constituents is of sufficient impor-
tance, he should be prepared to go out of office rather
than surrender on a matter of vital principle. Nor-
mally, however, he must remember that the very
meaning of the word representative is that the con-
stituents shall be represented. It is his duty to try
to lead them to accept his views, and it is their duty
to give him as large a latitude as possible in matters
of conscience, realizing that the more conscientious
the representative is the better he will in general repre-
sent them; but if a real and vital split on a matter of
principle occurs, as in the case of a man who believes
in the gold standard but finds that his constituents
believe in free silver, the representative’s duty is
neither to abandon his own belief nor to try to beat
his constituents by a trick, but to fight fairly for his
convictions and cheerfully accept defeat if he cannot
convert his constituents to his way of thinking—ex-
actly the attitude that the late Senator Lamar, of
Mississippi, once took on this very question and
triumphed, and exactly the attitude that the late Con-
gressman Dargan, of North Carolina, took at the
price of his political life.

Incidentally the referendum is certain to be of

61
THE INITIATIVE, REFERENDUM AND RECALL

great use in a particular class of cases which very
much puzzle the average legislator—where a minority
of his constituents, but a large and influential minority,
may demand something concerning which there is
grave doubt whether the majority does or does not
sympathize with the demand. In such a case the
minority is active and determined; the majority can
be roused only if the question is directly before it. In
other words, the majority does not count it for right-
eousness in a representative if he refuses to yield to a
minority; while a minority, on the other hand, will
not tolerate adverse action. In such cases the temp-
tation to the ordinary legislator is very great to yield
to the demand of the minority, as he fears its con-
crete and interested wrath much more than the tepid
disapproval of the majority. In all such questions the
referendum would offer much the wisest and most
efficient and satisfactory solution.

The opponents of the referendum and initiative,
therefore, would do well to remember that the move-
ment in favor of the two is largely due to the failure
of the representative bodies really to represent the
people. There has been a growing feeling that there
should be more direct popular action as an alternative,
not to the action of an ideal legislative body, but to
the actions of legislative bodies as they are now too
often found in very fact to act. The movement for
direct popular government in Oregon, for instance,
was in part the inevitable consequence of the gross
betrayal of their trust by various representatives of

62
NATIONALISM AND POPULAR RULE

Oregon in the national and state legislatures, and by
the men put in appointive office through the exertions
of these representatives. Moreover, the opponents,
and, for the matter of that, the adherents likewise,
of the proposed change, when they speak, whether in
praise or in blame of its radicalism, would do well to
remember that in one of the oldest and most conser-
vative sections of the country there has existed
throughout our national life, and now exists, a form
of local self-government much more radical where it
applies than even the initiative and referendum. I
refer to the New England town meeting, at which all
purely town matters are decided without appeal by
the vote of the townspeople in meeting assembled. In
no other part of the world, save in two or three can-
tons of Switzerland, and perhaps in certain districts
of Norway, is there any form of government so ab-
solutely democratic, so absolutely popular, as the New
England town meeting. The initiative and referen-
dum represent merely the next stage. The town meet-
ing has been proved to work admirably as regards
certain governmental units where the citizens are of
a certain type. The initiative and referendum have
been shown to work well as regards certain larger
constituencies of a different type. The men living in
states where the town meeting has flourished for cen-
turies should be the last to feel that the initiative and
referendum are in and of themselves revolutionary
propositions.

On the other hand, the advocates of the initiative

93
THE INITIATIVE, REFERENDUM AND RECALL

and referendum should, in their turn, remember that
those measures are in themselves merely means and
not ends; that their success or failure is to be deter-
mined not on a priori reasoning but by actually testing
how they work under varying conditions; and, above
all, that it is foolish to treat these or any other devices
for obtaining good government and popular rule as
justifying sweeping condemnation of all men and
communities where other governmental methods are
preferred. There is probably no class of men who
ought to study history as carefully as reformers—.
except reactionaries, for whom the need is even
greater. A careful study of eighteenth-century France
ought to show the reactionary that the rejection, by
the beneficiaries of special privilege, of wise and mod-
erate progressiveness, like that of Turgot, inevitably
tends to produce the most calamitous explosion; and,
on the other hand, the ultra-reformers will do well to
ponder the harm done in their turn by the Jacobins,
the inevitable reaction produced by their excesses, and
especially by the queer attitude they assumed when
they first defied the people and demanded the abso-
lute rule of the people and then declined to submit to
the judgment of the very people they had just defied
because that judgment was not sufficiently favorable.

The initiative and the referendum are devices for
giving better and more immediate effect to the popular
will. If in any given state—Vermont, for instance,
or Massachusetts, or New Hampshire, or New Jersey,
or New York—the people are not now ready to adopt

64
NATIONALISM AND POPULAR RULE

either, or even if they never become ready—why, that
is their affair, and the genuinely Progressive leader
will no more ostracize and read out of the company
of Progressives a New England state which thinks
it can achieve popular government without the refer-
endum than he would read out some state in another
part of the country because it has never adopted the
town meeting. Personally I should like to see the
initiative and referendum, with proper safeguards,
adopted generally in the states of the Union, and per-
sonally I am sorry that the New England town meet-
ing has not spread throughout the Union. But I cer-
tainly do not intend to part company from other
Progressives who fail to sympathize with me in either
view, and I do intend to insist with all the strength
I have that each device is a device and nothing more,
is a means and not an end. The end is good govern-
ment, obtained through genuine popular rule. Any
device that under given conditions achieves this end
is good for those conditions, and the value of each
device must be tested purely by the answer to the
question, does it or does it not secure the end in view?
One of the worst faults that can be committed by
practical men engaged in the difficult work of self-
government is to make a fetish of a name, or to con-
found the means with the end. The end is to secure
justice, equality of opportunity in industrial as well
as in political matters, to safeguard the interests of
all the people, and to work for a system which shall
promote the general diffusion of well-being and yet
65
THE INITIATIVE, REFERENDUM AND RECALL

give ample rewards to those who in any walk of life
and in any kind of work render exceptional service to
the community as a whole. We do not want to pro-
duce a dead level of achievement and reward; we want
to give the exceptional rewards, in the way of appro-
bation or in whatever other fashion may be necessary,
to the exceptional men, the Lincolns, Grants, Mar-
shalls, Emersons, Longfellows, Edisons, Pearys, who
each in his own line does some special service; but
we wish so far as possible to prevent a reward being
given that is altogether disproportionate to the serv-
ices, and especially to prevent huge rewards coming
where there is no service or indeed where the action
rewarded is detrimental instead of beneficial to the
public interest.

Ours is a government of laws, but every one should
keep always before him the fact that no law is worth
anything unless there is the right kind of man behind
it. In tropical America there are many republics:
whose constitutions and laws are practically identical
with ours, yet some of these republics have, through-
out their governmental career, alternated between des-
potism and anarchy, and have failed in striking fash-
ion at every point where in equally striking fashion
we have succeeded. The difference was not in the
laws or the institutions, for they were the same. The
difference was in the men who made up the com-
munity, in the men who administered the laws, and
in the men who put in power the administrators.

If we choose senators by popular vote instead of

66
NATIONALISM AND POPULAR RULE

through the legislatures, we shall not thereby have
secured good representatives; we shall merely have
given the people a better chance to get good represen-
tatives. If they choose bad men, unworthy men,
whether their unworthiness take the form of corrup-
tion or demagogy, of truckling to special interests or
of truckling to the mob, we shall have worked no
improvement. There have been in the past plenty of
unworthy governors and congressmen elected, just as
there have been plenty of bad senators elected. Simi-
larly, if the direct primary merely means additional
expense without compensating advantage in wise and
just action, the gain will be mi. At present there are
cities where the direct primary obtains, in which, so
far as I can seé, the boss system is about as firmly
rooted as in those cities where the direct primary has
not been introduced. So with the initiative and the
referendum.. Vermont has neither; Oregon has both.
In whichever state there is the less corruption and
greater justice, in whichever state the elected repre-
sentatives of the people are more upright, clean and
able, in whichever state the people are themselves wiser
in action, more prompt to recognize and reward good
service and fearlessness and independence in judge,
governor, senator, or congressman, why, in that state
we shall find the best government, wholly without
regard to the particular device by which the govern-
ment is obtained. If both states show equally well
in these matters, why, it means that each has devised
the instrument best suited for its own needs. It is
67
THE INITIATIVE, REFERENDUM AND RECALL

folly not to adopt the new instrument if experience
shows it to be an instrument which usually produces
better results; and if we are convinced that it is a
better instrument, then we should endeavor by reason
and argument to get our neighbors to adopt it; but it
is also folly to refuse to work with good men who
are striving for the same progressive ends as we are,
merely because these good men prefer older instru-
ments than those which we believe to be best fitted
for the purpose.

I believe in adopting every device for popular gov-
ernment which is in theory good and when the prac-
tice bears out the theory. It is of course true that
each is only a device, and that its worth must be
shown in actual practice; and it is also true that where,
as with us, the people are masters, the most vital need
is that they shall show self-mastery as well as the
power to master their servants. But it is often im-
possible to establish genuine popular rule and get rid
of privilege, without the use of new devices to meet
new needs. I think that this is the situation which
now confronts us in the United States, and that the
adoption in principle of the programme on which the
Progressives, especially in the West, are tending to
unite, offers us the best chance to achieve the desired
result.
CHAPTER III
THE ISSUES OF REFORM !

THE political discussions of recent years concern-
ing the reform of our political methods have carried
us back to where we began. We set out upon our
political adventures as a nation with one distinct ob-
ject, namely, to put the control of government in the
hands of the people, to set up a government by public
opinion thoroughly democratic in its structure and
motive. We were more interested in that than in
making it efficient. Efficiency meant strength;
strength might mean tyranny; and we were minded
to have liberty at any cost. And now, behold, when
our experiment is a hundred and thirty odd years
old, we discover that we have neither efficiency nor
control. It is stated and conceded on every side that
our whole representative system is in the hands of the
“machine”; that the people do not in reality choose
their representatives any longer, and that their repre-

 

1By Governor Woodrow Wilson. Reprinted by permission,
in part from the North American Review, May, 1910, and in part
from an address on “The Issues of Reform,” delivered in Kansas
City on May 5, 1911.
69
THE INITIATIVE, REFERENDUM AND RECALL

sentatives do not serve the general interest unless dra-
gooned into doing so by extraordinary forces of agi-
tation, but are controlled by personal and private in-
fluences; that there is no one anywhere whom we can
hold publicly responsible, and that it is hide-and-seek
who shall be punished, who rewarded, who preferred,
who rejected; that the processes of government
amongst us, in short, are haphazard, the processes of
control obscure and ineffectual. And so we are at the
beginning again. We must, if any part of this be
true, at once devote ourselves again to finding means
to make our governments, whether in our cities, in
our states, or in the nation, representative, responsible
and efficient.

Efficiency, of course, depends largely upon organ-
ization. There must be definite authority, centered in
somebody in particular whom we can observe and con-
trol, and an organization built upon obedience and
codperation, an organization which acts together, with
system, intelligence and energy. We were afraid of
such an organization at the outset. It seemed to mean
the concentration of authority in too few hands and
the setting up of a government which might be too
strong for the people. Our chief thought was of con-
trol. We concluded that the best means of obtaining
it was to make practically every office elective, whether
great or small, superior or subordinate; to bring the
structure of the government at every point into direct
contact with the people. The derivation of every part
of it we desired should be directly from the people.

70
THE ISSUES OF REFORM

We were very shy of appointments to office. We
wished only elections, frequent and direct.

As part of the system—we supposed an indispens-
able part—we defined the duties of every office, great
or small, by statute, and gave to every officer a defi-
nite legal independence. We wished him to take his
orders only from the law—not from any superior, but
from the people themselves, whose will the law was
intended to embody. No officer appointed him and no
officer could remove him. The people had given him
his term, short enough to keep him in mind of his
responsibility to them, and would not suffer any one
but themselves to displace him, unless he became him-
self an actual breaker of the law. In that case, he
might be indicted like any other lawbreaker. But his
indictment would be a family affair; no discipline im-
posed upon him by his superiors in office but a trial
and judgment by his neighbors. A district attorney,
elected on the same “ticket” with himself, would
bring the matter to the attention of a grand jury of
their neighbors, men who had in all likelihood voted
for them both, and a petit jury of the same neighbor-
hood would hear and decide the case if a true bill were
found against him. He stood or fell by their judg-
ment of the law, not by his character or efficiency.

A sheriff in one of the states suffered a prisoner
to be taken from him by a mob and hanged. He
made no show or pretence even of resistance. The
governor of the state wrote him a sharp letter or re-
buke for his criminal neglect of his duty. He replied

71
THE INITIATIVE, REFERENDUM AND RECALL

in an open letter in which he bluntly requested the
governor to mind his own business. The interesting
feature of the reply was not its impudence, but the
fact that it could be written with perfect impunity.
The fact was as he had stated it. He was not re-
sponsible to the governor or to any other officer what-
ever, but only to the voters of his neighborhood, many
of whom had composed the mob which took
his prisoner from him and hanged him at their
leisure. He was never called to account for what he
had done.

This is a sample of our direct responsibility to
the people as a legal system. It was very serviceable
and natural so long as our communities were them-
selves simple and homogeneous. The old New Eng-
land town meeting, for example, was an admirable
instrument of actual self-government. Where neigh-
borhoods are small, and neighbors know one another,
they can make actual selection of the men they wish
to put into office. Every candidate is known by every-
body, and the officers of government when elected
serve a constituency of whose interests and opinions
they are keenly and intimately aware. Any com-
munity whose elements are homogeneous and whose
interests are simple can govern itself very well in this
informal fashion. The people in such a case, rather
than the government, are the organism. But those
simple days have gone by. The people of our present
communities, from one end of the country to the other,
are not homogeneous but composite, their interests

72
THE ISSUES OF REFORM

varied and extended, their life complex and intricate.
The voters who make them up are largely strangers
to each other. Town meetings are out of the question,
except for the most formal purposes, perfunctorily
served ; life sweeps around a thousand centers, and the
old processes of selection, the old bases of responsi-
bility, are impossible. Officers of government used
to be responsible because they were known and closely
observed by neighbors of whose opinions and prefer-
ences they were familiarly aware; but now they are
unknown, the servants of a political organization, not
of their neighbors, irresponsible because obscure, or
because defended by the very complexity of the system
of which they form a part. The elective items on
every voter’s programme of duty have become too
numerous to be dealt with separately and are, conse-
quently, dealt with in the mass and by a new system,
the system of political machinery against which we
futilely cry out.

I say “futilely cry out” because the machine is
both natural and indispensable in the circumstances and
cannot be abolished unless the circumstances are
changed, and very radically changed at that. We have
given the people something so vast and complicated
to do in asking them to select all the officers of govern-
ment that they cannot do it. It must be done for them
by professionals. There are so many men to be named
for office; it is futile to name one or two unless you
name a whole ticket; the offices that fill a ticket are
so many and so obscure that it is impossible the thing

6 73
THE INITIATIVE, REFERENDUM AND RECALL

should be done informally and offhand by direct, un-
assisted popular choice. There must be a preliminary
process of selection, of nomination, of preparing the
ticket as a whole, unless there is to be hopeless confu-
sion, names put up at haphazard and nobody elected by
a clear majority at the end. The machine is as yet an
indispensable instrumentality of our politics.

Public opinion in the United States was never
better informed, never more intelligent, never more
eager to make itself felt in the control of government
for the betterment of the nation than it is now; and
yet, I venture to say, it was never more helpless to
obtain its purposes by ordinary and stated means. It
has to resort to convulsive, agitated, almost revolu-
tionary means to have its way. It knows what it
wants. It wants good men in office, sensible laws ad-
justed to existing conditions, conscience in affairs and
intelligence in their direction. But it is at a loss how
to get these. It flings itself this way and that, fright-
ens this group of politicians, pets that, hopes, protests,
demands, but cannot govern.

In its impatience it exaggerates the inefficiency and
bad morals of its governments very grossly and is very
unfair to men who would serve it if they could, who
do serve it when they can, but who are caught in the
same net of complicated circumstances in which opinion
finds itself involved. There is no just ground for be-
lieving that our legislative and administrative bodies
are generally corrupt. They are not. They are made
up for the most part of honest mien who are without

74
THE ISSUES OF REFORM

leadership and without free opportunity; who try to
understand the public interest and to devise measures
to advance it, but who are subordinate to a political
system which they cannot dominate or ignore. The
machinery of the bodies to which they belong is in-
organic, as decentralized as our elective processes
would lead one to expect. No one person or group
of persons amongst them has been authorized by
the circumstances of their election to lead them or
to assume responsibility for their programme of
action. They therefore parcel out initiative and re-
sponsibility in conformity with the obvious dictates
of the system. They put their business in the
hands of committees—a committee for each sub-
ject they have to handle—and give each of their mem-
bers a place upon some committee. The measures pro-
posed to them, therefore, come from the four quarters
of heaven, from members big and little, known
and unknown, but never from any responsible
source. There can be neither consistency nor con-
tinuity in the policies they attempt. What they do
cannot be watched, and it cannot be itself organized
and made a whole of. There is so much of
it and it is so miscellaneous that it cannot be debated.
The individual member must do the best he can amidst
the confusion. He has only an occasional part and
opportunity.

He is controlled, as a matter of fact, from out-of-
doors—not by the views of his constituents, but by a
party organization which is intended to hold the hetero-

75
THE INITIATIVE, REFERENDUM AND RECALL

geneous elements of our extraordinary political system
together.

When public opinion grows particularly restless
and impatient of our present party organization, it is
common to hear it defended by the argument that
parties are necessary in the conduct of a popular gov-
ernment; and the argument can be sustained by very
sound and eloquent passages out of Burke and many
another public man of the English-speaking peoples,
who has been below the surface of affairs and convinced
us of the real philosophy of our form of government;
but the argument is quite aside from the point. Of
course parties are necessary. They are not only neces-
sary but desirable, in order that conviction upon great
public questions may be organized and bodies of men
of like opinion and purpose brought together in effec-
tive and habitual codperation. Successful, orderly
popular government is impossible without them. But
the argument for our own particular organization of
parties is quite another matter. That organization is
undoubtedly necessary in the circumstances, but you
cannot prove its necessity out of Burke or any other
man who made permanent analysis of liberty. We
could have parties without organizing them in this par-
ticular way. There have been parties in free govern-
ments time out of mind and in many parts of the
world, but never anywhere else an organization of
parties like our own.

And yet that organization is for the time being
necessary. It centers, as everybody knows, in the nom-

76
THE ISSUES OF REFORM

inating machinery. There could be no party organiza-
tion if our elective system were literally carried out
as it was intended to be, by the actual direct and in-
formal selection of every officer of government, not by
party agents or leaders, but by the scattered voters of
the thousand neighborhoods of a vast country. It was
necessary to devise some machinery by which these in-
numerable choices should be coordinated and squared
with party lines. It was a huge business and called
for a compact and efficient organization.

Moreover, there was more than the process of
selection to be overseen and directed. Students of our
political methods have not often enough brought into
their reckoning the great diversity of social and eco-
nomic interest and development that has existed
among the different sections and regions of this vari-
ous country, which even yet shows every stage and
variety of growth and make-up and an extraordinary
mixture of races and elements of population. It has
been necessary to keep this miscellaneous body together
by continual exterior pressure, to give it a common
direction and consciousness of purpose by sheer force
and organization, if political action were not to become
hopelessly confused and disordered. It was not con-
scious of any immediate solidarity of interest or ob-
ject. It might have broken up into a score of groups
and coteries. We might have had more parties than
France, as many sections of political opinion as there
were distinctly marked regions of population and de-
velopment. Party interest has been kept alive, party

77
THE INITIATIVE, REFERENDUM AND RECALL

energy stimulated, by entrusting to local agents and
leaders the duty of seeing to it that systematic party
nominations were regularly made and urged upon the
voters by organized campaigns, whether there were any
natural reason or not why, in any given locality, this
party or that should be preferred; and national parties
have been pieced together out of these local fragments.
The creation of the parts was necessary to the creation
of the whole. I do not know how else codrdinated
parties could have been made out of such heterogene-
ous materials and such diversified interests.

The result has been that the nominating machinery
has become the backbone of party organization. By
it local leaders are rewarded with influence or office,
are kept loyal, watchful and energetic. By it national
majorities are pieced together. If one goes back to the
source of this matter, therefore, it is easy to see that
the nominating machine was no barnacle, but a natural
growth, the natural fruit of a system which made it
necessary to elect every officer of government. The
voter has not the leisure and, therefore, has not the
knowledge for the difficult and intricate business. He
cannot organize a government every year or two, make
up its whole personnel, apply its punishments and re-
wards, effect its dismissals and promotions. Neither
is there any officer or any group of officers of the gov-
ernment itself who can organize it for him, for no
officer has the legal authority. The structure of the
government is disintegrated by the law itself, so far
as its personnel is eoncerned. The constitutions and

78
THE ISSUES OF REFORM

statutes by which the officers are created endeavor, of
course, to integrate their functions; but they disinte-
grate their personnel by making each officer the direct
choice of the voters. The only possible means of in-
tegration lies outside governments, therefore, and is
extra-legal. It is the nominating machine. The ma-
chine applies the necessary discipline of administration
and keeps the separately elected officers of one mind in
the performance of their duties—loyal to an exterior
organization.

The punishment it inflicts is definitely and clearly
understood. It will not renominate any man who
when in office has been disobedient to party commands.
It can in effect dismiss from office. Any one who
wishes to remain in public life, at any rate in the
smaller and less conspicuous offices within the gift of
the managers, must keep in their good graces. Inde-
pendence offends the machine deeply, disobedience it
will not tolerate at all. Its watchfulness never flags;
its discipline is continuous and effective. It is the chief
instrument of party government under our system of
elections.

Thus have we necessitated the setting-up outside
the government of what we were afraid ourselves to
set up inside of it: concentrated power, administrative
discipline, the authority to appoint and dismiss. For
the power to nominate is virtually the power to ap-
point and to dismiss, as Professor Ford has pointed out
in his lucid and convincing “ Rise and Growth of
American Politics.” It is exercised by the bosses, in-

79
THE INITIATIVE, REFERENDUM AND RECALL

stead of by responsible officers of the gevernment—by
the men who have charge of the nominating machin-
ery; men who are themselves often entirely outside the
government as legally constituted, hold no office, do
not ask the people for their suffrage, and are picked
out for their function by private processes over which
the people have no control whatever. They are private
citizens and exercise their powers of oversight and
management without any public invitation of any kind.
Just because there are innumerable offices to be filled
by election, just because there are long and elaborate
tickets to be made up, just because it needs close and
constant attention to the matter to perform the duty of
selection successfully—as careful and constant atten-
tion as the superintendent of a great business or the
head of a great government bureau factory, his office,
or his bureau—it cannot possibly be done by the voters
as a body. It requires too much knowledge and too
much judgment, bestowed upon little offices without
number as well as upon great. No officer of the gov-
ernment is authorized to appoint or select. Party
managers must undertake it, therefore, who are not
officers of the government; and their nominations are
virtual appointments if they belong to the successful
party. The voters only choose as between the selec-
tions, the appointees, of the one party boss or the other.
It is out of the question for them to make independent
selections of their own.

If this machine, thus bossed and administered, is
an outside power over which the voter has no con-

80
THE ISSUES OF REFORM

trol—which he can defeat only occasionally, when, in
a fervor of reform, he prefers the candidates of some
temporary amateur machine (that is, nominating ap-
paratus) set up by some volunteer “ committee of one
hundred’ which has undertaken a rescue—it is the
system which is to blame, not the politicians. Some-
body, amateurs or professionals, must supply what they
supply. We have created the situation and must either
change it or abide by its results with such patience and
philosophy as we can command.

There can be no mistaking the fact that we are now
face to face with political changes which may have a
very profound effect upon our political life. Those
who do not understand the impending change ‘are
afraid of it. Those who do understand it know that
it is not a process of revolution, but a process of restor-
ation rather, in which there is as much healing as
hurt. There are strain and peril, no doubt, in every
process of change, but the chief peril comes from
undertaking it in the wrong temper. It lies not in the
change itself so much as in the method of some of
those who promote it. It is a noteworthy circumstance
_that in proportion as the people of the country come
to recognize what it is that renders them uneasy and
what it is that is proposed by way of reformation they
lose their fear and take on a certain irresistible enthu-
siasm.

The American people are naturally a conservative
people. They do not wish to touch the stable founda-
tions of their life; they have a reverence for the rights

81
THE INITIATIVE, REFERENDUM AND RECALL

of property and the rights of contract which is based
upon a long experience in a free life, in which they
have been at liberty to acquire property as they pleased
and bind themselves by such contracts as suited them.
No other people have ever had such freedom in the
establishment of personal relationships or property
rights. They do not mean to lose this freedom or to
impair any rights at all, but they do feel that a great
many things in their economic life and in their politi-
cal action are out of gear. They have been cheated
by their own political machinery. They have been
dominated by the very instrumentalities which they
themselves created in the field of industrial action. The
liberty of the individual is hampered and impaired.
They desire, therefore, not a revolution, not a cutting
loose from any part of their past, but a readjustment
of the elements of their life, a reconsideration of what
it is just to do and equitable to arrange in order that
they may be indeed free, may indeed make their own
choices and live their own life undominated, unafraid,
unsuspicious, confident that they will be served by their
public men and that the open processes of their govern-
ment will bring to them justice and timely reform.
What we are witnessing now is not so much a con-
flict of parties as a contest of ideals, a struggle between
those who, because they do not understand what is
happening, blindly hold on to what is and those who,
because they do see the real questions of the present
and of the future in a clear, revealing light, know
that there must be sober change; know that progress,
82
THE ISSUES OF REFORM

none the less active and determined because it is sober
and just, is necessary for the maintenance of our insti-
tutions and the rectification of our life. In both the
great national parties there are men who feel this
ardor of progress and of reform, and in both parties
there are men who hold back, who struggle to restrain
change, who do not understand it or who have reason
to fear it. Undoubtedly the present moment offers a
greater and larger opportunity to the Democratic party
than to the Republican party; but this is not because
there are not men in the Republican party who have
devoted their whole intelligence and energy to neces-
sary reform, but because the Democratic party as a
whole is freer to move and to act than the Republican
is and is held back by a smaller and weaker body of
representatives of the things that are and have been.

We generally sum up what we mean by the reac-
tionary forces by speaking of them as embodied in
the interests. By that we do not mean the legitimate
but the illegitimate interests, those which have not
adjusted themselves to the public interest, those which
are clinging to their vested rights as a bulwark against
the adjustment which is absolutely necessary if they
are to be servants and not masters of the public. The
chief political fact of the day is that the Republican
party is more closely allied with these interests than
the Democratic party. This circumstance constitutes
the opportunity of the Democrats. They are free to
act and to move in the right direction if they will but
accept the responsibility and the leadership. The:

83
THE INITIATIVE, REFERENDUM AND RECALL

Democratic party is more in sympathy with the new
tendencies than the Republican. Its free forces are
the forces of progress and of popular reform.

Both parties are of necessity breaking away from
the past, whether they will or not, because our life has
broken away from the past. The life of America is
not the life it was twenty years ago. It is not the life
it was ten years ago. We have changed our economic
conditions from top to bottom, and with our economic
conditions has changed also the organization of our
life. The old party formulas do not fit the present
problems. The old cries of the stump sound as if they
belonged to a past age which men have almost forgot-
ten. The things which used to be put into the party
platforms of ten years ago would sound antiquated
now. You will note, moreover, that the political audi-
ences which nowadays gather together are not partisan
audiences. They are. made up of all elements and
come together, not to hear parties denounced or
praised, but to hear the interests of the nation discussed
in new terms—the terms of the present moment. We
have so complicated our machinery of government,
we have made it so difficult, so full of ambushes and
hiding-places, so indirect, that instead of having true
representative government we have a great inextricable
jungle of organization intervening between the people
and the processes of their government; so that by
stages, without intending it, without being aware of it,
we have lost the purity and directness of representative
government. What we must devote ourselves to now

84
THE ISSUES OF REFORM

is, not to upsetting our institutions, but to restoring
them.

Undoubtedly we should avoid excitement and
should silence the demagogue. The man with power,
but without conscience, could, with an eloquent tongue,
if he cared for nothing but his own power, put this
whole country into a flame, because the whole country
believes that something is wrong and is eager to fol-
low those who profess to be able to lead it away from
its difficulties. But it is all the more necessary that
we should be careful who are our guides. The pro-
cesses we are engaged in are fundamentally conserva-
tive processes. If your tree is diseased it is no revolu-
tion to restore to it the purity of its sap, to renew the
soil that sustains it, to re-establish the conditions of
its health. That is a process of life, of renewal, of re-
demption. There is no ground for alarm, therefore.
We are bent upon a perfectly definite programme,
which is one of health and renewal.

Let us ask ourselves very frankly what it is that
needs to be corrected. To sum it all up in one sen-
tence, it is the control of politics and of our life by
great combinations of wealth. Men sometimes talk as
if it were wealth we were afraid of, as if we were
jealous of the accumulation of great fortunes. Noth-
ing of the kind is true. America has not the slightest
jealousy of the legitimate accumulation of wealth.
Everybody knows that there are hundreds and thou-
sands of men of large means and large economic power
who have come by it all not only perfectly legitimately,

85
THE INITIATIVE, REFERENDUM AND RECALL

but in a way that deserves the thanks and admiration
of the communities they have served and developed.
But everybody knows also that some of the men who
control the wealth and have built up the industry of the
country seek to control politics and also to dominate
the life of common men in a way in which no man
should be permitted to dominate.

In the first place, there is the notorious operation
of the bi-partisan political machine: I mean the ma-
chine which does not represent party principle of any
kind, but which is willing to enter into any combina-
tion, with whatever group of persons or of politicians,
to control the offices of localities and of states and of
the nation itself in order to maintain the power of
those who direct it. This machine is supplied with its
funds by the men who use it in order to protect them-
selves against legislation which they do not desire and
in order to obtain the legislation which is necessary for
the prosecution of their purposes.

The methods of our legislatures make the opera-
tions of such machines easy and convenient. For very
little of our legislation is formed and effected by open
debate upon the floor. Almost all of it is framed in
lawyers’ offices, discussed in committee rooms, passed
without debate. Bills that the machine and its backers
do not desire are smothered in committee; measures
which they do desire are brought out and hurried
through their passage. It happens again and again
that great groups of such bills are rushed through
in the hurried hours that mark the close of the legis-

86
THE ISSUES OF REFORM

lative sessions, when every one is withheld from vigi-
lance by fatigue and when it is possible to do secret
things.

When we stand in the presence of these things and
see how complete and sinister their operation has been
we cry out with no little truth that we no longer have
representative government.

Among the remedies proposed in recent years have
been the initiative and referendum in the field of legis-
lation and the recall in the field of administration.
These measures are supposed to be characteristic of
the most radical programmes, and they are supposed
to be meant to change the very character of our gov-
ernment. They have no such purpose. Their inten-
tion is to restore, not to destroy, representative gov-
ernment. It must be remembered by every candid
man who discusses these matters that we are contrast-
ing the operation of the initiative and the referendum,
not with the representative government which we pos-
sess in theory and which we have long persuaded our-
selves that we possessed in fact, but with the actual state
of affairs, with legislative processes which are carried
on in secret, responding to the impulse of subsidized
machines and carried through by men whose unhappi-
ness it is to realize that they are not their own mas-
ters, but puppets in a game.

If we felt that we had genuine representative gov-
ernment in our state legislatures no one would propose
the initiative or referendum in America. They are
being proposed now as a means of bringing our repre-

87
THE INITIATIVE, REFERENDUM AND RECALL

sentatives back to the consciousness that what they are
bound in duty and in mere policy to do is to represent
the sovereign people whom they profess to serve and
not the private interests which creep into their coun-
sels by way of machine orders and committee confer-
ences. The most ardent and successful advocates of
the initiative and referendum regard them as a sobering
means of obtaining genuine representative action on
the part of legislative bodies. They do not mean to
set anything aside. They mean to restore and re-in-
vigorate, rather.

The recall is a means of administrative control.
If properly regulated and devised it is a means of re-
storing to administrative officials what the initiative
and referendum restore to legislators—namely, a sense
of direct responsibility to the people who chose them.
_ The recall of judges is another matter. Judges are
not lawmakers. They are not administrators. Their
duty is not to determine what the law shall be, but to
determine what the law is. Their independence, their
sense of dignity and of freedom, is of the first conse-
quence to the stability of the state. To apply to them
the principle of the recall is to set up the idea that
determinations of what the law is must respond to
popular impulse and to popular judgment. It is suf-
ficient that the people should have the power to change
the law when they will. It is not necessary that they
should directly influence by threat of recall those who
merely interpret the law already established. The im-
portance and desirability of the recall as a means of

88
THE ISSUES OF REFORM

administrative control ought not to be obscured by
drawing it into this other and very different field.

The second power we fear is the control of our life
through the vast privileges of corporations which use
the wealth of masses of men to sustain their enter-
prise. It is in connection with this danger that it is
necessary to do some of our clearest and frankest
thinking. It is a fundamental mistake to speak of
the privileges of these great corporations as if they
fell within the class of private right and of private
property. Those who administer the affairs of great
joint-stock companies are really administering the
property of communities, the property of the whole
mass and miscellany of men who have bought the stock
or the bonds that sustain the enterprise. The stocks
and the bonds are constantly changing hands. There
is no fixed partnership. Moreover, managers of such
corporations are the trustees of moneys which they
themselves never accumulated, but which have been
drawn together out of private savings here, there, and
everywhere.

What is necessary in order to rectify the whole
mass of business of this kind is that those who con-
trol it should entirely change their point of view.
They are trustees, not masters, of private property,
not only because their power is derived from a multi-
tude of men, but also because in its investments it
affects a multitude of men. It determines the develop-
ment or decay of communities. It is the means of
lifting or depressing the life of the whole country.

7 89
THE INITIATIVE, REFERENDUM AND RECALL

They must regard themselves as representatives of a
public power. There can be no reasonable jealousy
of public regulation in such matters, because the op-
portunities of all men are affected. Their property is
everywhere touched, their savings are everywhere ab-
sorbed, their employment is everywhere determined,
by these great agencies. What we need, therefore, is
to come to a common view which will not bring antag-
onisms, but accommodations. The programmes of par-
ties must now be programmes of enlightenment and re-
adjustment, not revolutionary but restorative. The
processes of change are largely processes of thought,
but unhappily they cannot be effected without becom-
ing political processes also, and that is the deep respon-
sibility of public men. What we need, therefore, in
our politics is an instant alignment of all men free and
willing to think and to act without fear upon their
thought.

This is just as much a constructive age in politics,
therefore, as was the great age in which our federal
government was set up, and the man who does not
awake to the opportunity, the man who does not sacri-
fice private and exceptional interests in order to serve
the common and public interest, is declining to take
part in the business of an heroic age. I am sorry for
the man who is so blind that he does not see the oppor-
tunity, and I am happy in the confidence that in this
era men of strength and of principle will see their
opportunity of immortal service.

I am not one of those who wish to break connec-

99
THE ISSUES OF REFORM

tions with the past, nor am I one of those who wish
change for the mere sake of variety. The only men
who do that are the men who want to forget some-
thing, the men who filled yesterday with something
they would rather not recall to-day. Change is not
interesting unless it is constructive, and it is an age
of construction that must put fire into the blood of
any man worthy of the name.
CHAPTER IV

THE DEVELOPMENT OF DIRECT LEGISLATION
IN AMERICA ?

Tue referendum is an established principle in
American political life. It is not a new-fangled de-
vice, as it is characterized by opponents. Apart from
its state use in the adoption or amendment of state con-
stitutions and on other important subjects, the number
and variety of questions thus referred in cities is so
large that one who examines into the history of his
own and of neighboring cities will probably be some-
what amazed as to their frequency and importance.
Aside from its best-known use to decide vexatious
topics like local option and prohibition, the referendum
is used on financial questions like issuing bonds, and
on undertaking new enterprises, like schools, hospitals,
public buildings, parks, boulevards, sewers, water-
works, lighting plants, as well as on the most funda-
mental questions like the incorporation of cities and
the acceptance of their charters. The constitution of
Massachusetts, by amendment adopted as early as

 

1 By Robert Treat Paine. Reprinted from the Proceedings of
the National Municipal League (1908).

g2
DIRECT LEGISLATION IN AMERICA

1821, forbids the legislature to incorporate any town
as a city except with the consent of a majority vote
of the citizens of that town.

The direct legislation, however, to which we are
directing our attention, introduces the distinction or
differentiation in that the people themselves determine,
and not the legislature or the municipal legislative au-
thorities, whether or not questions shall be referred
through the referendum to a popular decision. The
referendum is not compulsory: it need not be used un-
less there is a positive demand for it—a petition signed
by a fixed number or percentage of the voters asking
for it. Its use is optional. It becomes therefore a
true people’s veto to be used when occasion requires
in the judgment of the people whether the municipal
legislative authorities so wish or not. The people
thus become directly sovereign in regard to the acts
of their own agents or representatives. Similarly the
initiative takes its rise from an initial action by the
people in those cases where their representatives ap-
pear unwilling to act in accordance with the supposed
will of the community. The authority of James Bryce
is not necessary to convince Americans that the gov-
ernment of their cities is the conspicuous failure in
American political institutions.

The federal system, with its two chambers based
on the theory of checks and balances, has been found
wanting. Whether or not it sufficed for earlier days
of simpler requirements when the non-interference
idea of government prevailed is immaterial. Our

93
THE INITIATIVE, REFERENDUM AND RECALL

cities to-day face problems of utmost gravity, arising
not only out of the great increase in population, but
also out of the far greater demands from this con-
gested urban population which asks for and should
be granted a higher standard of comforts and necessi-
ties. Modern civilization therefore requires that city
governments be aggressive, positive forces that can
grapple with and solve the problems as they arise or
are foreseen.

Unfortunately, in rather marked contrast with
modern Europe and England, our cities have been
mere creatures of the legislature with enumerated
powers limited to known requirements. Therefore
every new task has involved resort to the legislature.
Results have been disastrous both in enfeebling the
city’s self-reliance and civic character, and in leading
to an undue, injudicious and unjustifiable interference
by the state authorities. So well recognized has been
this evil that a majority of the state constitutions now
forbid the legislatures to interfere by special legisla-
tion. Owing however to the legislative device of clas-
sification this effort has been but partially successful.
In the West a remedy has been sought in a different
direction, through the constitutional assertion of the
independence, more or less complete, of the cities from
tne legislature, by the adoption of the home-rule char-
ter system.

In 1875 the constitution of Missouri was the first
thus to be amended to give cities of over 100,000
population, that is St. Louis and later Kansas City,

94
DIRECT LEGISLATION IN AMERICA

power to decide upon their charters by a vote of their
own citizens.

California followed with a constitutional amend-
ment in 1879, but provided that these charters after
adoption by the voters must be submitted to the leg-
islature for ratification or rejection as a whole. The
popularity of this move is evidenced by the vote in
its favor of 114,617 to 42,076, in 1892, when the
minimum limit of population, after a previous reduc-
tion in 1887 to 10,000, was still further reduced to
3,400. California further extended the power of cities
over their charters by amending article XI, section 8,
of the constitution, in November, 1906, so as to pro-
vide that an initiative petition of fifteen per cent. can
compel the submission to a popular vote at a regular
municipal election of any proposed charter amend-
ment.

In Oregon the constitutional amendment granting
the voters of every city and town power to enact and
amend their municipal charters was adopted on an
initiative petition from the people, by a vote of 52,567
to 19,852 on June 4, 1906.

Washington, Minnesota, Colorado and Oklahoma
have carried on this home-rule movement. In Michi-
gan the constitutional convention inserted a home
rule section in the new constitution which was voted
on and carried November 3, 1908.

But far more widespread or at least far more suc-
cessful over a wider stretch of territory is the move-
ment we are now to consider for more direct and

95
THE INITIATIVE, REFERENDUM AND RECALL

popular control by the ‘citizens themselves of their
municipal affairs. Both theoretically and practically
this movement appears justified in its aims. It gives
the best promise of helping the ultimate solution of
our municipal problems. This movement is either ad-
visory or mandatory in its operation. The advisory
system was perhaps the easier to enact, but the ten-
dency of late has been strongly towards the mandatory
initiative and referendum.

The advisory system aims to secure action by city
authorities in conformity with the popular judgment
through milder methods than direct legislation. The
voters are allowed to suggest or to express their opin-
ion on a course of action without however thereby
enacting such legislation or ordinance. Such a vote
is merely advisory in character and leaves the city
fathers with full power to act as they think best,
whether it be in accordance with or against the wishes
of the people. Winnetka, Illinois, is generally given
the credit for devising the method of securing a popu-
lar decision of important questions through pledging
candidates before their election to permit the reference
to the people of such questions when petitioned for.
The council was thus induced to pass an ordinance
providing for the submission to the voters before their
passage of all ordinances for franchises or for bond
issues and also all ordinances for which fifty voters
may have petitioned within five days after public post-
ing before their passage. Geneva, Illinois, extended
this system to include, in addition to the referendum,

96
DIRECT LEGISLATION IN AMERICA

the advisory initiative on any public question when
petitioned for by ten per cent. of the voters. Candi-
dates are questioned and pledged before election to
follow these rules.

This method has been followed by several cities.
Detroit, on June 17, 1902, unanimously adopted rules
of procedure by which a petition of five per cent. of
the voters may force all ordinances granting or renew-
ing public utility franchises, which have passed their
third reading in the council, to a popular vote at the
next election, and also any other measure instructing
the officials. A home-rule charter had been declared
unconstitutional by the supreme court, thus depriving
the city of the right granted therein for a referendum
on street railway franchises. A long-term extension
of such franchise was favored by a majority of the
council, but having pledged themselves to a referen-
dum while candidates for office a spirited demonstra-
tion of the citizens induced them to pass the above rule.
The proposal to extend the franchise was thereupon
dropped in view of the threatened veto. The first use
in Detroit of the referendum on franchises was made
November 6, 1906, when the Detroit United Railway
franchise was rejected decisively—and wisely accord-
ing to the Civic News, a good government publication
of Detroit.

Such self-denying council rules are not, however,
either permanent or self-enforcing. A two-thirds vote
may suspend them at any time, perhaps when needed
most. To secure their continued annual adoption may

‘97
THE INITIATIVE, REFERENDUM AND RECALL

require an annual pledging campaign. This year’s
manual of Detroit [1908] does not contain the rule
for instructing officials through the initiative. To
guarantee action by a representative government in
harmony with the popular will presupposes not a vol-
untarily assumed obligation of a temporary and op-
tional character, but an obligation of superior and con-
trolling force embodied in the fundamental law or
charter.

Grand Rapids, Michigan, petitioned the legislature
for a new charter, which was approved June 6, 1905,
granting a twelve per cent. referendum on any ordi-
nance and a twelve per cent. initiative for an advisory
vote on charter amendments. This referendum has
been used twice, once to approve of the franchise
granted to the Muskegon Power Company, and
again November 6, 1906, to reject an ordinance pro-
hibiting Sunday shows, 6,895 to 6,281. Under the
advisory initiative the voters have twice asked for
amendments to their charter; on April 2, 1906, voting
for an advisory initiative on ordinances by 6,196 to
1,736 and for the recall by 7,142 to 1,976; and on No-
vember 6, 1906, voting for the establishment of non-
partisan municipal elections by 8,865 to 3,350. Though
this question carried every precinct in a Republican
city and the total vote, 12,215, was within 729 of the
total cast for governor, yet the Republican legislature
refused to grant the request; as it also refused the
other requests. It is stated that the above charter pro-
visions are generally considered beneficial, though it

98
DIRECT LEGISLATION IN AMERICA

is felt that the enactment of charter amendments
should be compulsory after submission to and approval
by the electors.

Buffalo, under the general welfare clause of its
charter, adopted, July 13, 1904, a provision (chapter
45, of the city ordinances), which is still in force and
which authorizes the submission at a general election
of any questions of public policy to obtain the opinion
of the electors thereon, either on the petition of five
per cent. of the voters or upon resolution of the coun-
cil. On November 7, 1905, such an advisory initiative
resulted in a vote of 7,767 to 1,979 in favor of a mu-
nicipal electric lighting and power plant. The council
took no action to carry out this vote, but used it to
obtain somewhat more favorable prices from the ex-
isting private company. On November 3, 1908, the
advisory initiative asking for a new charter with the
largest possible measure of home rule obtained the en-
dorsement of 13,286 for, to 4,346 against.

In Illinois a public-opinion law was enacted May
4, 1901, allowing questions to be referred to the voters
of cities for an expression of opinion on the petition
of twenty-five per cent. Chicago has made effective
use of this authority, voting in April, 1902, for direct
primary nominations of city officers by 140,860 to
17,654, and on April 5, 1904, for the popular election
of the school board by 115,553 to 58,432. Both at
these elections and on April 4, 1905, April 3, 1906,
and April 2, 1907, there were referenda on the burning
street-railway issue. The question has been too promi-

99
THE INITIATIVE, REFERENDUM AND RECALL

nent throughout the country during all these years to
need extended comment. The first votes were over-
whelmingly in favor of municipal ownership of gas
and electric lighting plants, as well as of the street
railways, 139,999 to 21,364, and 142,826 to 27,998,
respectively ; but finally, after a six years’ struggle, the
people, by 165,846 to 132,720, accepted on April: 2,
1907, the council ordinances whereby great reforms
were promised in the service under the private man-
agement of the companies, and fifty-five per cent. of
the net profits was to go to the city treasury.

In Canada this advisory system has been author-
ized for cities by general provincial law in British
Columbia June 21, 1902, and in Ontario June 27,
1903. In Victoria the referendum by-law was adopted
by the council December 15, 1902. Either the council
or a petition of ten per cent. of the voters may send
questions to the annual municipal election in January
for obtaining the opinion of the electors upon any
question affecting the public welfare or any proposed
innovation or alteration of by-laws. In 1903, 1907
and 1908 the eight-hour day for city employees, the
sale of liquors by retail in stores, and an increased
water supply, were voted on. The opinion thus ex-
pressed by the electors has been regarded by the coun-
cil as a mandate for legislation in accordance there-
with.

In Toronto this advisory referendum has been
used for questions like reducing the number. of liquor
licenses, paying salaries to the aldermen, and exempt-

1co
DIRECT LEGISLATION IN AMERICA

ing dwellings from ‘assessment to the amount of seven
hundred dollars.

Augusta, Maine, has held special elections from
time to time to secure the opinion of the people when-
ever the importance of the issue has seemed sufficient
to warrant such an election. The city clerk states that
the authority is found in the clause of the city charter,
section 34, which provides that general meetings of
the citizens may be held to consult upon the general
good and to instruct their representatives according to
the right secured to the people by the state constitution
—to be summoned by the mayor and aldermen upon
the requisition of thirty voters.

The constitution of Massachusetts, the parent state,
contains a similar provision inserted in the original
document of 1780 and repeated in the city charters.
In the smaller cities, where the capacity of a hall bears
a reasonable relation to the probable number of voters
expected to attend, there have been numerous meet-
ings to decide upon various important matters, but it is
not known that any city has yet adopted Maine’s sensi-
ble expedient for changing a huge mass meeting into
the modern method of booths and ballots.

The constitutions of thirteen other states contain
in their bill of rights declarations more or less similar
in support of the right of the voters to give instruc-
tions: Pennsylvania, North Carolina, New Hamp-
shire, Vermont, Tennessee, Ohio, Indiana, Michigan,
Arkansas, California, Oregon, Kansas and Nevada.

In Delaware under the terms of the law, the peo-

I0I
THE INITIATIVE, REFERENDUM AND RECALL

ple voted, on November 6, "1906, on the question,
“Shall the general assembly provide a system of ad-
visory initiative and referendum?” Though the vote
in the entire state was more than eight to one in its
favor, the system was not authorized by the following
legislature, which, however, with but a single dissent-
ing vote in the senate, did establish for the city of
Wilmington, which had favored the proposition by
10,548 to 747, a local initiative without the referen-
dum. A petition of ten per cent. carries to the next
election any question relating to the affairs of the city
for an expression of opinion thereon. If it receives a
majority vote and is within the corporate powers of
the city government, it must be put into effect without
unreasonable delay. Any member of the council, or of
a commission, who neglects or refuses to perform the
duty therein imposed commits a misdemeanor punish-
able by fine, removal from office, and ineligibility to
hold office for five years. This last provision should
lessen the danger of representatives refusing to carry
out the people’s will; but as far as it renders the action
by the council merely an obligatory and perfecting
formality, it would seem to approximate practically to
the system of direct legislation.

On June 1, 1907, at the city election, five ques-
tions were submitted to the people: Shall the legisla-
ture be memorialized for a home rule government for
Wilmington with the initiative and the referendum
(8,786 to 813) and for the New York system of as-
sessing real estate (9,037 to 757)? Shall ordinances

102
DIRECT LEGISLATION IN AMERICA

be passed to require the publication of a complete finan-
cial statement (8,324 to 569), and the bonding of as-
sessors and collectors (8,346 to 663), and the observ-
ance by the railroad companies using the streets of
their franchise requirements for the repairs of. the
streets and improvements of their cars (8,302 to 504) ?

The memorial for direct legislation will be pre-
sented to the legislature when it convenes in December,
but the vote emphasizes the desire of the community
for local autonomy. The council has adopted ordi-
nances for financial statements and for bonding,
though the court has declared the latter at variance
with the state law. The mayor’s office states that the
requirements of the last vote are those which the city
has always endeavored to enforce, and it is compulsory
for the street railways to live up to the provisions pre-
scribed in their franchises.

The grants by municipal councils of franchises for
public-service utilities have been the cause of much
anxious thought. How can they be wisely safe-
guarded? The law has been asked to limit the
maximum term and to create other restrictions. There
is a more or less general movement to require that
such grants be referred to a popular vote for ratifica-
tion or for rejection through a people’s veto.

Iowa, which as early as 1872 had provided for a
referendum on franchises for waterworks, to be fol-
lowed by a similar regulation in 1888 on municipal
lighting plants, established in 1899 an optional refer-
endum and initiative with reference to all similar

103
THE INITIATIVE, REFERENDUM AND RECALL

quasi-public services. Either the council may submit
the question at a general or special election or the
mayor must do so on the petition of twenty-five
property-owners from each ward. Indiana,’ in 1899,
established an optional referendum along somewhat
similar lines.

In Ohio, by an act approved by Governor Harris
April 15, 1908, no ordinances granting or extending
a franchise to any street railway can become operative
if within thirty days after its passage by the council
there is a petition of fifteen per cent. of the voters,
until it has been submitted to either a general or spe-
cial election and has received a majority of the votes
cast.

In Cleveland, at a special election October 22,
1908, a referendum invoked against the “ security ”
franchise to the new railway company resulted in an
enormous vote being cast, defeating the traction com-
promise by 38,249 to 37,644. A fuller discussion of
the long struggle in Cleveland will undoubtedly be
found in the secretary's annual review of important
events of the year.

An amendment to the charter of Memphis, Ten-
nessee, passed March 10, 1905, chapter 54, section 29,
enacts that no quasi-public franchise shall be granted
unless approved by the voters at a general or special
election if such submission has been demanded, within
thirty days of its passage, by five hundred freeholders.

 

1 Shibley: ‘‘Municipal Affairs” Vol. VI, p. 785.
104
DIRECT LEGISLATION IN AMERICA

Nebraska carried the system of its fuller recogni-
tion of the people’s right to originate or to veto ordi-
nances of any kind when by chapter 32 of 1897, in
effect on July 10, fifteen per cent. of the voters in any
municipal subdivision of Nebraska are authorized to
propose any ordinance which, unless adopted by the
council, goes to the next municipal election. If
amended by the council, both propositions go, and that
one prevails which receives the larger vote, provided
that between them they receive a majority of all the
votes cast. A petition of twenty per cent. sends the
question to a special election within thirty to sixty days
after filing. This act is not operative till accepted by
invoked against any ordinance within thirty days after
being passed by the council unless declared to be
urgent for the immediate preservation of the public
peace or health, or unless items of the modern city
appropriations and passed by a unanimous yea and
nay vote. The same percentages, fifteen and twenty,
determine with reference to the next regular municipal
election occurring fifteen days after filing the petition
or to a special election within fifteen to twenty days
after filing the petition. The referendum may be
the voters of the particular town or city. Lincoln
adopted the provisions of this statute at the city elec-
tion May 7, 1907, by 2,754 to 679, Mr. F. W. Brown
being elected mayor by 2,632 to 2,590. Omaha ac-
cepted this initiative and referendum statute Novem-
ber 6, 1906, by 6,373 to 1,437, but no questions under
it have since been brought to a popular vote.

8 105
THE INITIATIVE, REFERENDUM AND RECALL

South Dakota was the first state to embody in her
constitution the provisions for the initiative and refer-
endum, adopting the amendment November 8, 1898,
by 23,816 to 16,483, whereby not more than five per
cent. of the voters is to be required for either the
initiative or the referendum. This applies to cities as
well as to the state, and the legislature the following
year made provisions, chapter 94, for carrying into
effect the initiative and referendum in municipalities,
fixing the requirement at five per cent. of the vote cast
at the last election.

Oregon adopted a state system of the initiative and
referendum June 2, 1902, by a vote of 62,204 to
5,668. The people took advantage of its provision for
the initiative and amended the constitution at the
biennial election June 4, 1906, by 47,678 to 16,735,
and established local direct legislation, with not more
than ten per cent. required to order the referendum
or fifteen per cent. to propose any measure by the
initiative in any city or town.

Montana followed Oregon in a constitutional
amendment for direct legislation November 6, 1906,
with a vote of 36,374 to 6,616, and the legislature the
next winter, by chapter 62, provided for the applica-
tion in cities and towns of the referendum on the peti-
tion of five per. cent. and of the initiative on eight per
cent., with fifteen per cent. required in either case to
demand a special election.

Oklahoma in her new constitution adopted Septem-
ber 17, 1907, which President Roosevelt in his procla-

106
DIRECT LEGISLATION IN AMERICA

mation on November 16, 1907, declared to be “ repub-
lican in form,” provides for a local referendum and
initiative as well as a state system, and fixes the per-
centage for cities at twenty-five. In the constitutional
amendment establishing a state system of direct legis-
lation, which Maine adopted September 14, 1908, by a
vote of 51,991 to 23,743, section 21 provides that any
city may establish the initiative and referendum
through an ordinance ratified by a popular vote.

In Illinois, under the public opinion law, a vote was
taken at the state election in November, 1902, upon
the popular petition for a local referendum law and
resulted in a favorable vote of 390,972 to 83,377.
This expression of opinion was ignored by the legisla-
ture. A second vote was taken November 8, 1904, on
a similar question of establishing a local five per cent.
people’s veto, and resulted in an even more over-
whelming vote in its endorsement—535,501 to 95,420.
The people’s representatives, however, have paid no
attention to these and other similar expressions of the
people’s wishes.

The greatest local development of direct legislation
has been witnessed in the Pacific states. San Fran-
cisco, under the home-rule provisions of the Califor-
nia constitution, elected a board of freeholders De-
cember 27, 1897, to propose a new charter which was
ratified at a special election May 26, 1898, by 14,386
to 12,025, and having been approved by the legislature
in 1899, chapter 2, went into effect January 8, 1900.
It provided for an initiative on the petition of fifteen

107
THE INITIATIVE, REFERENDUM AND RECALL

per cent. of the voters to apply either to ordinances
or to charter amendments; and franchises for water-
works or lighting plants, or ordinances for the pur-
chase of land, must be referred to the next election.
The same system was copied by Vallejo through a
special election December 8, 1898 (chapter 5, 1899)
and by Fresno, October 19, 1899 (chapter 9, 1901).

The initiative and referendum system which is gen-
erally thought of when reference is made to it is that
of Los Angeles, adopted at a special election December
1, 1902, by a vote of 12,105 to 1,955. The legislature
ratified it in 1903, chapter 6. The system is elab-
orated in much more detail and has generally served
as the basis or model for other cities which have since
adopted direct legislation.

Under the initiative any proposed ordinance may
be presented to the council. If five per cent. petition,
it goes without alteration to the next municipal elec-
tion. If fifteen per cent. petition and request a special
election, it must be passed without alteration by the
council within twenty days, and if vetoed by the
mayor, repassed by the council or the council must
call a special election at which it shall be submitted to a
vote of the people. If the council passes it, the refer-
endum may still be invoked against it.

The basis for the percentage is the entire vote cast
for mayor at the last preceding general election. The
city clerk has ten days in which to examine the petition
and ascertain whether it has been signed by the requi-
site number of qualified electors. If found insufficient,

108
DIRECT LEGISLATION IN AMERICA

the petition may be amended within ten days, after
which the clerk has a further period of ten days to
renew his verification as to its sufficiency and then
present it to the council, or if again deficient to return
it without prejudice to the person filing it.

Any number of proposed ordinances may be voted
upon at the same election, but not more than one spe-
cial election shall be held in any period of six months.
Any ordinance proposed by petition or adopted by
popular vote can be amended or repealed only by vote
of the people, though the council may submit at any
succeeding city election propositions for repeal or
amendment.

The referendum applies practically to all ordi-
nances except those declared to be urgent for the im-
mediate preservation of the public peace, health or
safety; and passed by a two-thirds vote of the council.
No franchise grants can be construed as urgency
measures. Ifa seven per cent. petition is presented to
the council within thirty days from its final passage
and approved by the mayor, the ordinance shall be
suspended from going into operation and the council
shall reconsider and entirely repeal the ordinance,
or it shall be submitted to a vote of the electors at the
next general election or at a special election called
for the purpose, and shall not go into effect unless
approved by a majority of voters voting on the same.
Ten days prior to the election at which any ordinance
is submitted to the voters the city clerk mails to each
voter a printed copy of the ordinance with a sample

109
THE INITIATIVE, REFERENDUM AND RECALL

ballot unless the council has ordered, in place of this,
its publication in the official newspaper of the city in
the same manner as ordinances adopted by the council
are required to be published.

The movement thus started made rapid progress.
Sacramento, San Bernardino, San Diego and Pasa-
dena held special elections on November 3, 1903, Janu-
ary 6, 1905, January 27, 1905, and February 28, 1905,
and adopted amendments to their charters, except in
the case of San Bernardino, which proposed an en-
tirely new charter, and the legislature gave its ap-
proval in 1905, in chapters 12, 15, 11 and 20 of the
current resolutions.

Eureka, Santa Monica, Alameda, Santa Cruz,
Long Beach and Riverside held elections on June 19,
1905, March 28, 1906, July 18, 1906, January 22,
1907, February 5, 1907, and March 1, 1907, to adopt
new charters, which were approved by the legisla-
ture in its session of 1907, in chapters 14, 6, 7, 9, 15
and 25.

In general these later charters followed pretty
closely the model of Los Angeles. San Diego adopted
the same percentages; five and fifteen per cent. for the
initiative for general and special elections respectively,
and seven per cent. for the referendum. Sacramento
and Riverside require ten per cent. for either the
initiative at a general election or for the referendum.
Eureka, Alameda and Santa Cruz raise the percentage
for a special election for the initiative to twenty and
vary the referendum slightly by having fifteen per cent.

IIo
DIRECT LEGISLATION IN AMERICA

to keep an ordinance from going into effect before the
election, while ten per cent. allows it to become opera-
tive subject to its repeal ten days after an adverse
popular vote.

Long Beach, Santa Monica, Pasadena and San
Bernardino raise the percentage still higher, to thirty,
for the initiative at a special election, and in general
have high percentages for the other requirements,
ranging from ten to thirty.

The following table may illustrate more graph-
ically the various percentages required in the different
cities :

Initiative to Referendum
General or Special Elections

San Francisco................. 15

Vallejo) nines GS aeieecak mani 15

PresnO ss asecdes sueeagen case es 15

Los Angeles................6. 5 15 7

Sait Diego iss.c. ceauene eae he oe 5 15 7

SACAMENtO:: 6 ieies can eetess 10 15 10

Riverside iis sovadedsaa gia paces 10 15 10

Eureka...c.eceussdees aes erases 10 20 10-15

Alameda: os s:p).\cscaie sc cent esolets 10 20 10-15

Santa Cruz..............-206- 10 20 10-15,

Long Beach................-- 10 30 25

Santa Monica................- 25 30 25-30
spPASADENA 5554.5 seminccasie caer ete 30 10

San Bernardino........... ‘Lae. 30 30

In view of the fact that the initiative and referen-
dum have been put to comparatively rare use, it would
seem distinctly unwise to raise the percentages so high
as to make the system almost unworkable when for
good reason. there should be resort to it. The ten,

II
THE INITIATIVE, REFERENDUM AND RECALL

twenty and ten formula may be a conservative and
moderate one, though friends of the system in Los
Angeles advise against increasing the percentages
which prevail there of five, fifteen and seven.

There are several variations on the general model.
Pasadena allows the council to submit to the voters an
alternative to the measure suggested by the initiative.
Eureka, Alameda and Santa Cruz make twenty-five
per cent. obligatory for an initiative petition against
measures adopted by the electorate. Santa Monica
does not allow a measure enacted by the people to be
amended by the council before two years and forbids
a measure to be submitted a second time except by the
council or on a thirty per cent. petition. Santa Cruz
allows a referendum on the same measure twice within
a year only on a forty per cent. petition. Alameda
permits a special election if the expenses are paid in
advance by the applicant for a franchise or by other
persons. Alameda, Santa Monica, Riverside and Sac-
ramento provide that if the provisions of two or more
measures, which are adopted at the same election, con-
flict, then the measure receiving the highest affirmative
vote shall control.

The experience of Los Angeles throws light upon
the value of direct legislation. There has been only
one special election called under a fifteen per cent.
initiative petition obtained by the prohibitionists, who
tried to close all saloons; but in this they were de-
feated.

At the general election December 6, 1904, four

112
DIRECT LEGISLATION IN AMERICA

ordinances were presented under the initiative to fix
the limits of slaughter-house districts. Though con-
fusing and conflicting, a local authority states that
with keen intelligence and good judgment the people
carried the best one by a handsome majority. About
a year ago an additional franchise of great financial
and strategic value, estimated to be worth a million
dollars, was given by the council to the street railway
corporation. Though rushed through to catch the peo-
ple napping, under the threatened use of the referen-
dum and the recall, the ordinance was revoked by the
council. In the spring of 1908 the council granted
for five hundred dollars another very valuable fran-
chise to this same street railway company, and passed
it over the veto of the mayor. A referendum petition
was presented May 18, and the council having refused
to repeal the ordinance, it was held up and referred
to the next municipal election. Since the same city
council had refused to pass an ordinance compelling
the street railways to properly equip their cars with
efficient fenders and run at a moderate rate of speed
within the heart of the city, although the accidents
and mortality were said to be greater proportionately
than in any other city, the Voters’ League secured
over four thousand signatures to a petition calling for
a special election, but before presenting it persuaded
the council to adopt a satisfactory ordinance, which
has since been the cause of saving many lives. Los
Angeles claims a population of over three hundred
thousand, which would perhaps rank it as the seven-
113
THE INITIATIVE, REFERENDUM AND RECALL

teenth largest city in the United States, approximating
the size of Washington.

As the city in which the modern system of direct
legislation was established first and has therefore been
given the longest trial, it is interesting and instructive
to see what testimony is offered as to its value. The
first act of a committee lately sitting on charter re-
vision was to resolve that the direct legislation pro-
visions be retained intact without any increase of per-
centages. ‘

Municipal Affairs, the organ of the Municipal
League of Los Angeles, says that “nothing better has
happened to Los Angeles than making the initiative,
referendum and recall a part of its organic law. Large
as was the vote in their favor, it would be many
times larger should any attempt be made to eliminate
them,” and points out “that to a very large extent the
value of the initiative, referendum and recall lies not
in the fact that they are used, but that they may be
used. They are the most powerful deterrent we have
against bad officials and corrupt and incompetent law-
making.”

Two years ago a circular letter addressed to the
Christian people of California says that “ civic reform
and a revival of practical righteousness cannot be se-
cured by individual or religious efforts alone, without
regard to environment and practical means of work-
ing. Our duty and responsibility as voters also re-
quire us to secure a simple method by which Christian
influence can be made most effective in promoting the

114
DIRECT LEGISLATION IN AMERICA

public welfare. The best method yet proposed for
non-partisan political action is direct legislation—the
initiative and referendum.” This circular was signed
by ten leading ministers of the Methodist, Baptist,
Presbyterian, Congregational and other denomina-
tions, by Bishop T. J. Conaty of Monterey and Los
Angeles, and by the president of Pomona College.

The Republican mayor of Riverside, which adopted
direct legislation last year but as yet has not brought
any questions under it to a popular vote, writes that
as an abstract proposition he thinks there is no room
for adverse argument, but adds: “In my judgment
if the lawmakers could be elected or appointed free
from any obligation to either corporations, individ-
uals, or parties and could then make the laws plain
and do away, with technicalities and give a quick serv-
ice of the law to all alike, there would be very little
agitation for what the strictly political persons call
these insane and anarchistic provisions.” As no
American city has yet been able to accomplish the
aforesaid “if,” it is probable that these “insane and
anarchistic provisions”’—the best method yet pro-
posed for non-partisan political action—will continue
to be resorted to by those who desire to make Chris-
tian influences effective in promoting the public wel-
fare.

In Alameda the council voted to spend the one hun-
dred and fifteen thousand dollars, authorized by popu-
lar vote for playgrounds, upon one tract only, at a
very high price. The mayor, favoring three play-

115
THE INITIATIVE, REFERENDUM AND RECALL

grounds in different parts of the city, vetoed the ordi-
nance, and in the ensuing deadlock secured an initia-
tive petition of twenty per cent. of the voters, by which
this question was referred to popular decision at a
special election May 2, 1908, when the mayor’s posi-
tion was sustained by a vote of 1,078 to 626, which
carried every precinct.

Inasmuch as the recall has been adopted very gen-
erally as a part of the new system of direct legislation
and is often referred to, as above, as one of the bul-
warks of the people against misrepresentative gov-
ernment, it may be well to consider briefly its present
status in the above cities. Papers in the 1905 and
1906 volumes of Proceedings of the League have de-
scribed the principles of the recall as first devised for
Los Angeles and later adopted in Pasadena, Fresno,
San Bernardino and San Diego, and also the first use
of it in Los Angeles in the removal of a councilman.
Since then Santa Monica, Alameda, Santa Cruz, Long
Beach and Riverside, as well as San Francisco and
Vallejo, whose charters were adopted prior to this new
movement by Los Angeles, have all inserted in their
charters provisions for the recall. In four instances
the required percentage has been raised from twenty-
five to thirty or forty. The popular votes on its adop-
tion have been strongly in its favor; the latest one
being 22,945 to 5,597, in San Francisco in November,
1907, where it was proposed by an initiative petition.
The recall was invoked June 30, 1907, in two wards
of San Bernardino against two councilmen. A petition

116
DIRECT LEGISLATION IN AMERICA

for the recall was held by the court as valid in San
Diego, but the term of the councilmen expired before
the legal proceedings had been brought to a close.

Oregon adopted on June 1, 1908, by 58,381 to
31,002, under an initiative petition, an amendment to
her constitution whereby she became the first state to
render every public officer subject to the recall by the
voters of the state or of the electoral district from
which he is chosen, not more than twenty-five per cent.
of those voting for the justices of the supreme court at
the preceding election to be necessary for filing the
petition. The recall thus becomes available for all
cities in the state.

Portland, Oregon, by its charter adopted June, 1902,
provides for a fifteen per cent. initiative to the general
election and a fifteen per cent. referendum against all
ordinances for franchises or for the municipal owner-
ship of public utilities. At the election June 3, 1907,
twenty-one questions were submitted to the voters, but
of this seemingly excessive number sixteen were re-
ferred by a vote of the city council and only five were
due to initiative petitions.

In Washington, under a law passed March 21,
1903, a petition of fifteen per cent. of the voters ask-
ing the adoption of a specified charter amendment,
within the realm of local affairs, causes it to be sub-
mitted at the next municipal election. A charter
amendment was thus initiated in Seattle and adopted
March 3, 1908, by 11,493 to 6,063, providing for the
referendum on ten per cent. and for the initiative on

117
THE INITIATIVE, REFERENDUM AND RECALL

twenty-five per cent. to go to the next regular elec-
tion. Three petitions have since been presented but
were found insufficient. The recall was adopted at the
city election March 5, 1906, by 9,312 to 1,265. Ever-
ett adopted a city charter November 26, 1907, contain-
ing the initiative, referendum and recall by a vote of
2,287 to 389. The percentages are twenty, ten and
twenty-five respectively. Spokane has a provision for
a fifteen per cent. referendum.

Denver, under the home-rule provisions of the Col-
orado constitution, elected its board of freeholders and
ratified the proposed charter March 29, 1904. A
twenty-five per cent. petition is required for either the
initiative or the referendum and all franchises must be
submitted to the vote of the qualified taxpaying voters
and the expense of such submission paid in advance
by the applicant. At the general election May 15,
1906, under a petition with twenty thousand signatures
an initiative ordinance was voted on which had been
drafted by the Municipal Ownership League fixing
maximum charges for gas, electricity and water, and
providing for children’s half-fare tickets on the street
railways.

The initiative and referendum have been given a
great impetus through another movement which has
aimed by establishing a commission form of govern-
ment to lessen inefficiency, waste and corruption
through concentrating power and responsibility upon a
small body of men. The commission system was
first authorized for Galveston in a charter granted

118
DIRECT LEGISLATION IN AMERICA

by the Texas legislature in 1901. A full account of
this plan in its operation there may be found in the
1906 and 1907 volumes of the League’s Proceedings.
The referendum is obligatory on proposed issues of
bonds which must be approved by a majority of qual-
ified taxpaying voters. The example of Galveston
was followed by other cities in Texas. Houston in
1905, and,El Paso, Fort Worth and Dallas in 1907,
obtained charters for a commission government, and
Waco voted for it this spring. San Antonio in a
new charter of 1903 provided for a ten per cent. refer-
endum to apply only to franchises and suspending the
operation of the ordinance until it has been ratified by
a majority of all voters. Houston introduces a varia-
tion in that the referendum, on all franchises, is avail-
able on the petition of the definite number of five hun-
dred voters, while El Paso introduces a further varia-
tion in making the referendum depend on four hundred
voters who are taxpayers, or on the volition of the
council itself. Fort Worth provides a twenty per cent.
referendum and also a twenty per cent. recall. Green-
ville and Denison in their 1907 charters for a council
of mayor and two aldermen provide, the one for a
referendum on franchises on the petition of one hun-
dred voters, and the other for a twenty per cent. recall.
Dallas follows the California model more closely in
allowing an initiative to the general election on five
per cent. with fifteen per cent. for a special election,
and a referendum on franchises on a petition either of
fifteen per cent. or of five hundred voters, and doubles
IIo
THE INITIATIVE, REFERENDUM AND RECALL

the time within which to petition by making this period
sixty days; and also has a thirty-five per cent. recall.
The final form by which the commission plan of
government is at the present time being generally com-
bined with direct legislation, and often with the recall
of the Los Angeles type, has been made prominent by
Des Moines. By a law passed March, 29, 1907, Iowa
permits all cities in the state with a population exceed-
ing twenty-five thousand to adopt by popular vote, on
a petition of twenty-five per cent. of the number vot-
ing at the preceding city election, a charter which is
set forth in the act. Des Moines adopted this charter
June 20, 1907, by 6,044 to 4,143, and it went into
effect the following March. The initiative requires a
ten per cent. petition for the general election and
twenty-five per cent. for a special election. The refer-
endum may be demanded by a twenty-five per cent.
petition presented within ten days after the passage
of the ordinance objected to. Twenty-five per cent. is
likewise required to bring the recall into operation.
At the election November 3, 1908, there were three
referenda voted on and carried by decisive majorities.
An interesting incident was the voting of the women
on these questions in accordance with the terms of the
charter. Cedar Rapids is the second city in the state
to adopt a similar charter which went into effect April
8, 1908, and according to the mayor has been univer-
sally satisfactory. Sioux City voted against the ac-
ceptance of a commission charter 567 to 533. South
Dakota passed an act, chapter 86, in 1907, that is very
120
DIRECT LEGISLATION IN AMERICA

similar to the one in Iowa, but the percentages are
considerably lower. Cities are allowed to adopt the
commission form charter at special elections held under
an initiative petition of fifteen per cent. Both the in-
itiative and the referendum are brought into use on
a five per cent. petition, and a period of twenty days
is allowed; while the recall requires fifteen per cent.
Sioux Falls voted September 29, 1908, by 857 to 353,
to incorporate under this charter. Lewiston was given
a new charter by the Idaho legislature, March 13,
1907, providing for a mayor and six councilors elected
at large. The initiative petitions of five and fifteen per
cent. call for action at general and special elections
respectively. The referendum may be invoked within
thirty days against franchises and real estate ordi-
nances on petition of three hundred voters. The recall
requires twenty-five per cent. Under the initiative a
special election was held November 5, 1908, on the
petition for an ordinance designed to secure prohibi-
tion throughout the city. The ordinance was defeated.

Kansas passed an act March 2, 1907, setting forth
a commission form of government and permitting all
cities of the first class to adopt it by a majority vote
at a special election. A ten per cent. referendum is
authorized on all franchise ordinances within sixty
days after their passage and the entire expense of the
city election must be paid in advance by the franchise
applicant. Leavenworth adopted the act February 11,
1908, by 1,932 to 1,585, but Wichita rejected it, De-
cember 3, 1907, by 3,266 to 1,218.

9 121
THE INITIATIVE, REFERENDUM AND RECALL

In conservative Massachusetts two cities have blazed
the way to direct legislation in the charters which they
have just adopted. Haverhill was the first to accept
the new law, chapter 574, by a vote of 3,066 to 2,242,
at a special election October 6, 1908, following the
model of Des Moines exactly in the various percentages
required for the initiative, the referendum and the
recall. Gloucester accepted chapter 611 on Novem-
ber 3, 1908, by 1,762 to 1,400. Twenty-five per cent. is
required for either the referendum or the initiative,
and the recall is not authorized.

Kansas City elected a board of freeholders under
the home rule provisions of the Missouri constitution
and adopted the charter prepared by them at a special
election August 4, 1908, by a vote of 14,069 to 5,219.
The recall which was submitted as a separate proposi-
tion was lost, not receiving the necessary four-sevenths
of the total vote, the figures being 4,099 to 2,724. All
franchises are subject to a twenty per cent. referendum
within sixty days and if a special election is called, the
expenses must be borne by the person or corporation
in whose favor the ordinance is enacted. A ten per
cent. initiative petition can cause amendments to the
charter to be submitted to a general or special election
at which they must be accepted by a three-fifths ma-
jority of those voting. North Dakota and Mississippi
are other states that in 1907 (see chapters 45 and 108)
provided for a popular initiative of ten per cent. to
call for special elections to act on the question of
adopting commission government charters in cities.

122
DIRECT LEGISLATION IN AMERICA

Wisconsin, in chapter 670, authorizes in 1907 the same
popular initiative of ten per cent. to bring before the
voters of any city the question of accepting that act
which forbids party. designations on nomination papers
or official ballots.

At the other extreme from the commission form of
government is the plan adopted at Newport, Rhode
Island, June 6, 1907, by a vote of 1,804 to 1,161,
where the representative council consists of the un-
usual number of one hundred and ninety-five members
elected from the five wards, with a mayor and five
aldermen. One hundred electors may initiate a peti-
tion for any ordinance or expenditure of money ex-
ceeding ten thousand dollars and if the council refuses
to pass it, a second petition of three hundred electors,
or roughly six per cent., causes the proposition to be
referred to special ward meetings of the qualified
electors. All votes of the council requiring the expen-
diture of a similar sum, in addition to the regular ap-
propriations, are subject within seven days to a refer-
endum petition of one hundred and fifty electors and
must then be referred within thirty days to special
ward meetings.

Other cities are now considering the adoption of
direct legislation under new charters, among them be-
ing Milwaukee, Wisconsin, Berkeley, California, and
St. Joseph, Missouri. No instance is recorded of any
city rejecting direct legislation after having once
adopted it and tried it.

Special elections should not be held except when

123
THE INITIATIVE, REFERENDUM AND RECALL

the questions to be presented are of extreme impor-
tance and such as to arouse the community to exhibit
its interest by a large vote. Under such conditions
special elections are justifiable because they further
tend to keep the questions out of politics and allow
them to be settled on their merits. Therefore the per-
centages requisite for summoning special elections
should be comparatively high, while in other cases they
should be reasonably moderate, and the time within
which a referendum petition may be presented of suf-
ficient length so as not to make the burden unreason-
ably arduous or impracticable. Experience shows that
neither the initiative nor the referendum is abused by
an excessive number of petitions.

Nearly every form or combination of forms in
municipal government has been tried and hitherto has
been more or less of a failure. Two fundamental dif-
ficulties have been experienced. The masses of the
voters have been unfortunately divided by allegiance to
and consideration of national or state partisan organi-
zations. The influential and property classes have too
often had financial interests at stake in the quasi-pub-
lic service corporations which have prevented them
from considering municipal questions with an eye
solely to the general welfare of a community.

Direct legislation is of immense gain in concen-
trating the attention of the voters upon measures and
not men. Partisan consideration can no longer domi-
nate. Instances are numerous where party candidates
have won, but the measures they advocated or had

124
DIRECT LEGISLATION IN AMERICA

passed have been defeated. Not only is the interfer-
ence of national partisanship in municipal affairs very
largely reduced and neutralized by the initiative and
the referendum, but there is a simultaneous movement
for its elimination by legislative enactment. The char-
ters of the Des Moines character expressly forbid par-
tisan designations upon the ballots.
CHAPTER V
THE REFERENDUM IN THE UNITED STATES

KNOWLEDGE can be made useful as a basis for pub-
lic action only by the general acceptance of principles
which become thereby commonplace; and in politics
one of the most trite among these is the doctrine that
the value of an institution depends upon its harmony
with its environment. The referendum, or submission
of laws to direct popular vote, has grown up in com-
munities whose other institutions have differed in many
respects from those of England. To point out those
differences and explain their effects would require more
space than the pages of a review will allow. In fact,
to compress so large a matter into so small a room it is
necessary to limit one’s horizon still farther by exclud-
ing all subjects not strictly germane to the present dis-
cussion in England, such as the local referendum, that
is, the popular vote of the people of a city or district
upon a question of purely municipal character or upon
the application of a general act to that district alone.

The referendum, in the restricted sense of a sub-

 

1 By President A. Lawrence Lowell. Reprinted by permission
from The Quarterly Review, June, 1911.

126
REFERENDUM IN THE UNITED STATES

mission to a vote by the whole electorate of measures
passed by the representative body, has been introduced
in three different forms at three different periods of
American history. The periods have to some extent
overlapped, yet the movements have been so far dis-
tinct that it is convenient to describe them separately ;
and, in fact, we can recognize three notable waves of
the movement for direct popular legislation, each rising
higher than the last.

In New England, before the Revolution, the mem-
bers of colonial assemblies were often treated as dele-
gates appointed to confer together and report to their
constituents; and after the end of the colonial period
there lingered a kindred practice of instructing the rep-
resentatives in town meeting. But leaving aside these
early types of democracy, the modern referendum first
appears in America in the form of submitting state
constitutions to the people for ratification. This was
done in Massachusetts in 1778, when the proposed
“Frame of Government ” was rejected by the voters;
and again in 1780, when the constitution that is still
in force in the state was adopted. New Hampshire
followed her example immediately afterwards, submit-
ting to’ the people one constitution which was rejected
in 1779, and another which was ratified in 1783. It
was nearly forty. years before the procedure was copied
elsewhere, but the custom then spread rapidly; and
after 1820 almost all new state constitutions were sub-
mitted to popular vote. The uniformity of practice
has been seriously interrupted only on two occasions,

127
THE INITIATIVE, REFERENDUM AND RECALL

each the result of wholly exceptional conditions. The
first occurred when the southern states, during the
stress of secession and reconstruction, dispensed with
the practice; the second, when several of these states
followed this precedent in their recent effort to dis-
franchise the negroes. The situation in the last of
these cases was anomalous. To submit to the old
electorate the question whether it would withdraw the
suffrage from a large part of its members was clearly
to imperil the result; and hence in several of the states
a convention framed and adopted a new constitution
without a popular vote. The action showed no distrust
of the general principle; and it is safe to regard the
doctrine that a state constitution must be ratified by
a vote of the people as a firmly established tradition in
American public life.

The practice has been applied not only to the re-
vision Of the instrument as a whole by the adoption
of a new constitution, but also to what the Swiss call
a partial revision—that is, the adoption of a particu-
lar amendment; a provision empowering the legislature
to enact amendments subject to ratification by popular
vote being embodied in the constitution itself. Such a
provision first appeared in Connecticut in 1818, and
was copied by other states until it became almost uni-
versal. When we remember that the constitutions,
especially among the newer states, have been growing
more and more elaborate, including many subjects nor-
mally within the range of current legislation, it is evi-
dent that the constitutional referendum covers a very

128
REFERENDUM IN THE UNITED STATES

wide field. Still it is a different thing from a general
referendum on ordinary laws, especially in America,
where the stream of statutes is swollen to such a tor-
rent that the arts of statesmanship have been largely
applied to the construction of dykes to prevent it from
flooding the country. Since the matters comprised in
the constitutions have been those that were deemed
relatively permanent, the popular vote on constitutional
questions furnished by itself imperfect evidence of the
way in which a general referendum would work; and
yet it is only in this form that the referendum in the
United States has endured sufficiently long, and has
prevailed widely enough to justify conclusions drawn
from experience.

In measuring the value of any popular institution
which is intended to bring public opinion to bear upon
political affairs, we may properly ask ourselves four
questions: whether it has really any substantial effect
or is an empty form; whether it fairly expresses public
opinion; whether the opinion so expressed is wise; and
whether after long experience it retains general respect.

That the constitutional referendum has a substan-
tial effect there can be no doubt, for amendments re-
ferred to the people are often rejected. It has been
asserted that legislators sometimes pass on to the popu-
lar tribunal amendments in which they have little faith,
in order to rid themselves of uncomfortable political
questions; but such cases can form only a small part
of the measures rejected by the people. A few figures
quoted by Dr. Oberholtzer are conclusive upon the free-

129
THE INITIATIVE, REFERENDUM AND RECALL

dom with which the voters refuse their assent to meas-
ures they do not like. He tells us that the Legisla- |
tive Bulletin of the New York State Library for the
years 1895 to 1897 gives, for all the states, one hun-
dred and ten constitutional amendments submitted to
popular vote, of which fifty were ratified and sixty
rejected. In an earlier periodical, covering the six
years from 1886 to 1891, he finds one hundred and
sixteen amendments so submitted, fifty-four of them
being accepted and sixty-two rejected. Whether com-
plete statistics for a century would show that more or
less than one-half of the amendments to state consti-
tutions had survived the ordeal of a popular vote, it
is certain that the proportion rejected would prove
the ballot to be no empty form, but a highly effective
instrument for defeating proposed changes in the fun-
damental law.

How far the result of the popular vote on legisla-
tive proposals fairly expresses public opinion is a much
more difficult question, on account of the smallness
of the vote cast. The vote on measures is always less
than that for the principal public officers to be elected
at the same time. As Dr. Oberholtzer remarks, only
“about a half of all those who know their own minds
respecting candidates seem to care anything about
measures.” Legally those who do not vote are neg-
lected, and that is the only way in which the referen-
dum can practically be used; but when twenty-six per
cent. of the people vote for a measure and twenty-four
per cent. against it, one would be rash in making any

130
REFERENDUM IN THE UNITED STATES

positive assertion about public opinion on the matter.

The experience of Massachusetts—a conservative
commonwealth with a good legislature, whose people
have practised the art of popular voting on constitu-
tional questions longer than any other community too
large to meet in a general assembly—may be of inter-
est on the two questions already discussed. Since the
adoption of the constitution of 1780 there have been
submitted to the people fifty-eight questions, of which
thirty-nine were answered in the affirmative and nine-
teen in the negative. The rejection of one-third of
the proposals shows that the people had a mind of
their own; but the variation in the interest they ap-
peared to take in the different measures is surprising.
The votes castat the referenda have varied from a num-
ber slightly in excess of those polled for the candidate
for governor in the same year down to one-thirtieth
part thereof, two measures being actually carried by
less than 4,500 affirmative votes, although nearly 170,-
ooo were cast in the election of the governor. On ten
measures the number of votes polled was less than
one-fifth of the number cast in the election; on forty-
two measures it was less than two-thirds; and it must
be remembered that only seventy-five per cent. of the
registered voters cast their ballots even for governor.
In this connection it may be observed@hat the vote is
almost always larger on measures which have been

 

1 One of those rejected relating to the introduction of woman
suffrage was merely of an advisory nature.

131
THE INITIATIVE, REFERENDUM AND RECALL

rejected than on those which have been adopted. In
only two instances of acceptance, indeed, has the total
vote exceeded two-thirds of that cast in the election
for governor; and no constitutional amendment has
been ratified by a majority of the electorate. In cases
of rejection, however, the vote has usually -been close,
whereas in cases of adoption the margin has commonly
been considerable; so that a small total vote may have
signified not only apathy but in part also confidence
in the result.

The third question—whether the popular opinions
expressed by the constitutional referendum have been
wise or not—is not a simple one. The answer will,
depend very much on the prepossessions of the persom
who makes it; but a survey of the fifty-eight popular;
votes which have taken place in Massachusetts sinte
1780 leaves the impression that almost all those of.
doubtful wisdom were either in accord with the bes
thought of the time or were afterwards reversed. °

On the final question—whether the referendum on
constitutional matters in the United States retains gen-
eral respect or not—there can be no doubt; for the
institution is as deeply rooted in public esteem as ever,
and no one would seriously propose its abolition.

The constitutional referendum, of which I. have
been speaking, was a natural result of the attempt to
place the fundamental law on a different basis from
ordinary legislation. The next development of direct
popular action in lawmaking, not very different from

132
REFERENDUM IN THE UNITED STATES

the first in principle or in its effects, arose from a prac-
tical demand for a check upon the legislature when
dealing with matters that involve peculiar temptations
or the pressure of local or other interests. With this
object a clause was inserted in the constitutions of sev-
eral states providing that the action of the legislature
upon certain specific subjects should not be valid unless
ratified by popular vote, although the other formalities
of constitutional amendment were not required. The
practice began about the middle of the last century,
and has been applied to the selection of sites for state
capitals and public establishments, to the contracting
of state debts, to taxation in excess of a fixed amount,
to the creation of banks, to the extension of the suf-
frage, and to a few other matters. It has been used
mainly, although not exclusively, by the newer states,
and was devised to meet difficulties keenly felt, rather
than as an expression of any general political principle.
While it has been retained in those communities where
it arose, it may be regarded as the product of immature
conditions, for it has shown no marked tendency to
spread to other parts of the country or to expand over
new subjects.

In connection with these ‘constitutional provisions
for the reference of particular matters to popular vote
we must speak of the attempt occasionally made by
legislatures, in the absence of any such provision, to
refer some perplexing question to the people. The
procedure might perhaps have become common had it
not been checked by the courts, which have held that

133
THE INITIATIVE, REFERENDUM AND RECALL

without constitutional authority a legislature cannot
divest itself of responsibility for legislation by shifting
it on to the shoulders of the electors. It can, of course,
consult them by means of an informal vote, and this is
sometimes done; but it cannot make that vote decisive
upon the enactment of a statute. No such obstacle
would, of course, arise in the case of the British Par-
liament.

The third and most comprehensive movement for
a referendum is very recent. It takes the form of a
general provision in the constitutions that, upon the
petition of a certain number of citizens, any law, not
declared urgent by the legislature, shall be submitted
to popular vote. Unlike the two earlier phases which
were native in origin, growing out of purely indigenous
ideas and conditions, this last is a conscious imitation
of Swiss institutions; and it has usually been coupled
with the Swiss initiative, whereby a fixed number of
citizens can propose a law and require a popular vote
thereon. The movement has had a strongly theoreti-
cal tinge, and has been pushed by associations formed
to advocate it on abstract principles. Nevertheless, the
real force that has given it momentum with the public
and won its victory in a number of states has been
not so much faith in a democratic creed as a dissatis-
faction with the existing legislatures, a conviction that
they are too largely under the control of party ma-
chines allied with moneyed interests.

The referendum in this general form was adopted
first by South Dakota in 1898, and in the dozen years

134
REFERENDUM IN THE UNITED STATES

that have passed since that date by Utah, Oregon, Ne-
vada, Montana, Oklahoma, Maine, Missouri, Arizona,
Arkansas, Colorado and New Mexico—twelve states
most of which lie in the newer and less populous parts
of the country and have limited the sessions of their
legislatures to very brief periods. As yet it is too early
to say what the effect of the institution will be. A gen-
eration must pass before that can be determined; but
the use that has actually been made of the general ref-
endum in the few years during which it has been in
operation is not the less interesting.

Although direct popular legislation was established
in South Dakota a dozen years ago, it was used first,
and has been used far more freely, in Oregon. No
other state, indeed, made any use of it until 1908; and
in Oregon the popular votes under the new provisions
have been three times as numerous as those in all the
other states combined. But in making this statement
it is necessary to discriminate between the different
kinds of direct legislation. In Switzerland the initia-
tive has been used little, and rarely with success; and,
save in Oregon, that has been the case in the American
states. As yet they have put it in operation only half
a dozen times; and the measures proposed have always
been rejected. But in Oregon it has been used in the
last eight years for no less than forty-eight measures,
including constitutional amendments; and twenty-five
of them have been adopted. The referendum, -on the
other hand, has been hitherto less of an Oregonian
monopoly. That state has referred to popular vote,

135
THE INITIATIVE, REFERENDUM AND RECALL

either by petition or by the action of the legislature
itself in accordance with a power conferred upon it,
nine statutes, whereof four have been ratified and five
rejected; while in the other states thirteen acts have
been so referred, of which four have been ratified
and nine rejected.

With the enormous mass of legislation in America
one feels impelled to ask to what lengths direct legisla-
tion will ultimately grow, and whether a people that
has any other occupation in life will be able to carry
it on intelligently. More than half of these popular
votes occurred last autumn, with the result that in Ore-
gon the people voted upon thirty-two different meas-
ures, besides voting on candidates for office; and in
South Dakota, where the measures, although less in
number, were printed in full, the ballot was six feet
long in small type. Perhaps for this reason the people,
except in Oregon, rejected almost everything presented
to them. In Oregon, however, to their credit be it
said, they were discriminating, accepting nine and re-
jecting twenty-three of the measures submitted. These
ranged over the whole ground of legislation—liquor
laws, taxation, employers’ liability, woman suffrage,
state railroads, good roads, nominations for office, pro-
portional representation, reform of juries and judicial
procedure, fishing in Rogue River, the salary of a
judge, eight separate bills for creating as many new
counties, and sundry other matters—a programme that
might overtax Parliament for a decade. The average
vote on all these measures was nearly three-quarters

136
REFERENDUM IN THE UNITED STATES

of that cast for governor at the same time. Equity,
the periodical devoted to the cause of direct legislation,
asks: “ Now do you not think that Oregon, with her
thirty-two measures, stands vindicated?” Truly the
citizens of Oregon are a remarkable people, and the
institution they have brought forth is an infant Hercu-
les; but whether or not he has shown wisdom in his
cradle, and whether his presence has had a salutary
influence upon the state economy, are questions on
which the doctors disagree.

An effort is now being made to extend direct leg-
islation to national affairs. This has not hitherto been
done even in the case of amendments to the federal
constitution, because that instrument was originally
framed by delegates from the several states, was
adopted by the states, and provided for the ratification
of amendments by three-quarters of the states. What-
ever theory may be held of the national sovereignty,
there can be no doubt that historically the federal con-
stitution was based upon the assent of the states; and
the practice has never been changed. This can readily
be understood if one considers the improbability that
any plan for a closer federation of the British Empire
or any future modification thereof, would be submitted
for ratification to a popular majority of the Empire as
a whole, without regard to the opinion of the com-
ponent parts. Before a referendum, either on consti-
tutional amendments or on ordinary legislation, can be
applied to national questions in the United States, the
principle must make a great advance in public favor.

10 137
THE INITIATIVE, REFERENDUM AND RECALL

Much has been said in England about the expense
of a referendum; but on this point American experi-
ence is of little value, both because the total cost of
a poll differs in different countries, and because in the
United States a referendum is habitually combined
with an election of public officers. American elections
are periodic, public officers of some kind being chosen
throughout a state as a rule every year; and the popu-
lar vote upon a legislative measure is usually taken at
the same time. In such a case the expense of the ref-
erendum is merely that which is entailed by bringing
the matter before the people; but this varies greatly.

As to the bearing of American experience of the
referendum upon the solution of English problems it
is difficult to speak. There is in England no sharp dis-
tinction between constitutional and other measures, and
hence no clearly defined class of laws which would be
regularly submitted to popular vote; and yet it is on
this condition that the results of the American consti-
tutional referendum are based. Those results have
already been described, while the optional or occasional
referendum on ordinary laws has not endured long
enough in America to justify any conclusive verdict,
even if such a verdict would be decisive in England.
The importance of a referendum there must depend
chiefly on its indirect effects, its influence upon the
responsibility of the cabinet, upon the relation of min-
isters to the majority in the House of Commons, upon
the stability of the party system; in short, upon the
whole structure of English parliamentary government.

138
CHAPTER VI

RIRECT LEGISLATION AS AN ALLY OF REPRESENTATIVE
GOVERNMENT !

Our fathers founded this government in order to
secure for the people—all the people—the blessings
of life, liberty and happiness. They devised institu-
tions and machinery to that end.

To-day, after the lapse of a century and a quarter,
combinations of power have grown up under these
institutions in the face of which, for multitudes of
our population, life is precarious, liberty practically
despaired of, and happiness, except of a kind enjoyed
by the Roman proletariat or the plantation slave, un-
known. We know that no one would be more impatient
of such conditions than our revolutionary forefathers,
and no one more resolute in seeking a remedy. Honor
to their memory requires us to scrutinize their work,
and to modernize it if necessary, just as they modern-
ized their inherited institutions. :

 

1By Professor Lewis Jerome Johnson, based upon an article in
the New England Magazine, June, 1909, and the Chicago Public of
July 30,1909, and later reprinted by the Massachusetts Direct Leg-
islation League.
139
THE INITIATIVE, REFERENDUM AND RECALL

Accordingly we turn first to the spirit and purposes
underlying our institutions. We find nothing to criti-
cise, even after all this time. We can suggest no
improvements in this quarter. Even now we are in-
spired with a new enthusiasm by the ideals expressed
by our fathers in founding this republic, the ideals so
impressively reaffirmed by Lincoln at Gettysburg.

We turn next to the details of their governmental
machinery. Little is left of their industrial methods
and institutions, and perhaps their political devices too
are out of date. If they are, possibly it is not too late
to supplement them or replace them with better. The
legislative machinery underlies all else. We observe
that our lawmaking is entrusted to representative bod-
ies. The make-up of these bodies is, nominally at
least, under public control, but the output (except
amendments to state constitutions) is not even nom-
inally under public control, except as such control may
be exerted through pressure upon individual representa-
tives. When we consider the extent to which such
pressure is exerted to-day by the greedy and highly
organized few, rather than by the merely normally
interested and unorganized many, a legislative system
which may have been safe once comes to look decidedly
defective.

Further reflection convinces us that this lack of
adequate popular control of results is not only a defect
but is the fundamental defect in our legislative mech-
anism. Its correction is therefore essential, and is log-
ically the first step in the modernization of our politi-

140
ALLY OF REPRESENTATIVE GOVERNMENT

cal machinery. This done, improved legislation is as-
sured as fast as the majority can agree upon it. This
done, all unnecessary and undesirable obstacles to prog-
ress will have been minimized. Until this is done, we
have little reason to hope for permanently better con-
ditions, except at an utterly unreasonable cost in effort
and delay. The importance of concentrating attention
upon this issue is manifest.

The next question is, how shall the public get
‘adequate control of results? The answer is, we must
assert our natural right to revise the work of our rep-
resentatives. We must do this revising ourselves.
There is no one else to do it. To do it we must sup-
plement the existing legislative machinery with a work-
able, orderly, and properly guarded contrivance to en-
able us to enact laws, to veto them, to amend them or
to repeal them by direct popular vote over the head of
legislatures and city councils, in the instances when
these bodies fail to meet the public will. In other
words, we must considerably extend the practice of
direct legislation by the people, already familiar to us
in the New England town meeting, and in the popular
ratification of amendments to state constitutions.

Fortunately the way to do this has been devised
and tested and has met expectations on a city-wide and
state-wide scale. It involves two devices developed
in the last few decades, the initiative and the referen-
dum, now included under the single term direct legis-
lation.

The initiative enables the people to enact desirable

141
THE INITIATIVE, REFERENDUM AND RECALL

measures by direct popular vote, when such measures
have been or are likely to be ignored, pigeon-holed,
amended out of shape, or defeated by the legislature.
Measures passed in this way may be entirely new laws,
or they may, of course, amend or repeal existing laws.

The referendum enables the people, by direct popu-
lar vote, to veto recent enactments of their representa-
tives.

The initiative corrects sins of omission.

The referendum corrects sins of commission.

The initiative is set in operation by volunteer
groups of citizens—civic, labor, or mercantile organi-
zations—who draw up laws which they think good for
themselves, or the public, or perhaps both. If they can
get a certain moderate percentage’ of the voters of
the city or state to sign the requisite petition the meas-
ure goes to the council or legislature, and if this body
refuses to adopt it within a specified time without
amendment, the measure must be transmitted un-
changed to the people for their decision. If the leg-
islative body thinks it can produce a better enactment
to the same effect, it may draw it up and send it to
the people, with the other, as a competing measure.
The voters then choose between them, or reject both.
In some jurisdictions, notably Oregon, initiative meas-

 

1The number of signatures required in these petitions ranges, in
different states from five to eight per cent. of the voters for initia-
tive petitions for ordinary laws; from eight to fifteen per cent. for
initiative petitions for constitutional amendments; and from five
to ten per cent. for referendum petitions, The usual percentages
are eight for initiative, and five for referendum petitions.

142
ALLY OF REPRESENTATIVE GOVERNMENT

ures go directly to the people without previous sub-
mission to the legislature. Other modifications in de-
tail may be expected as time goes on.

The referendum, likewise upon petition, brings
newly passed legislation to the popular tribunal for
veto or confirmation.

The need of interference with the work of the rep-
resentatives is greatly reduced by the mere existence
of the system, and the number of laws actually coming
to popular vote is a small fraction of the whole.

Direct legislation is likely to result, before being
long in operation, in the establishment of the recall,
which is the properly guarded power of removal of
unsatisfactory officeholders before the expiration of
their terms. Thus the people gain the power of re-
moval, the logical supplement to their already exist-
ing power of election.

The recall, though obviously a device indispensable
for popular control and usually, in city charters, es-
tablished simultaneously with direct legislation, will
not be discussed further here. It should be looked
upon as one of the numerous desirable but subordinate
measures, like preferential voting, direct nominations,
and the short ballot, which may safely be left to be
gained by subsequent enactment in the larger jurisdic-
tions like our states. This is strikingly true in Massa-
chusetts where the recall has been suggested, if not
actually authorized by the constitution since its adop-
tion in 1780, as will be seen from article VIII of that
constitution, and could, possibly, unlike the initiative

143
THE INITIATIVE, REFERENDUM AND RECALL

and referendum, be made operative without constitu-
tional amendment.

The initiative and referendum, as now advocated,
carry with them, of course, adequate and systematic
means, independent of the newspapers, of furnishing
each voter the full text of the measures to be voted on;
the condensed form in which they will be printed on
the ballot; statement of the reasons for and against
each measure; and the names of those behind each
proposition.

In Oregon, the secretary of state edits this informa-
tion and mails it in pamphlet form to each voter in the
state fifty-five days before election. At least eight
weeks have elapsed by that time since the circulation
and filing of the petitions. This is found to afford
ample time for deliberation and discussion, and the
pamphlet provides an adequate basis for decisions.
Those who wish to insert arguments in this pamphlet
pay the cost of paper and printing—some eighty dol-
lars per page—and the state bears the rest of the cost
of the pamphlet and its distribution. In initiative cases,
supporting arguments are accepted from none but duly
accredited representatives of the friends of the meas-
ure; any one who will pay the cost, however, may in-
sert arguments against such a measure. In referendum
cases arguments upon either side may be inserted by
any one willing to pay the cost. In the election of
June, 1910, when thirty-two measures were acted
upon by the electorate, the state pamphlet was a docu-
ment of two hundred octavo pages. Oregon voters

144
ALLY OF REPRESENTATIVE GOVERNMENT

protect themselves still further from false or mislead-
ing campaign literature by a provision of their admir-
able Corrupt Practices Act—a comprehensive measure
based on English practice, which came from the peo-
ple by the initiative—which prescribes a heavy penalty
for circulating political literature without the names of
its authors and publishers.

In Oklahoma, there is a state pamphlet for inform-
ing voters as in Oregon, but with some interesting dif-
ferences in detail. In Oklahoma, as is proposed in
Massachusetts, initiative measures go first to the legis-
lature. Hence all popular voting is upon measures
which have had recent legislative action. A joint com-
mittee of house and senate is therefore naturally called
upon to prepare the arguments supporting the legisla-
ture’s position. The opposing argument is drawn up
by a committee representing the petitioners. The ar-
guments for each side of each measure is restricted
by the Oklahoma law to two thousand words, one-
fourth of which may be in answer to opponents’ argu-
ments. The direct argument on each side is prepared
and submitted to the secretary of state, who transmits
it to the opposing side to serve as the basis for the
rebuttal just mentioned and thus complete the argu-
ment. ‘These arguments on all the questions are then
assembled in the state pamphlet and distributed to all
the voters of the state a suitable number of weeks
before the election. The cost of printing and distri-
bution is borne by the public treasury. The Oklahoma
plan has some striking merits. It requires the legisla-

145
THE INITIATIVE, REFERENDUM AND RECALL

ture to state the reason fot the action which it has
taken. Doubtless this reason is often good and suff-
cient, but perhaps more certainly so when the law-
makers know in advance that they may have to de-
fend their position. The legislature’s views on the
measure should be of great value to the voters.

More important still, it ensures the presentation
of a negative argument. Experience in Oregon has
already shown that a negative argument is not always
forthcoming when left to be supplied by volunteers.
A campaign of silence is sometimes wisely preferred
by interests at whom an initiative measure is aimed
to the revelation of weakness which would result from
a formal attempt at defence. They well know that
voters are likely, from sheer force of habit, thought-
lessly to concede more in the defence of a long-estab-
lished wrong than its beneficiaries would dare claim
for it. The Oklahoma plan of informing voters re-
quires each side to show its hand. Bluffing is elimi-
nated. Privilege has to come out in the open and state
such case as it has. Silent contempt is not permitted
to do duty as argument. Both the Oregon and the
Oklahoma systems of disseminating information do
much to forestall the misleading of voters through the
newspapers. Some expense is involved, but this point
is not apt to be pressed except by those opposed to the
whole system on other grounds. The body of voters
well understand that one bad law or one carelessly
granted franchise may cost the public in actual dollars
and cents many times the cost of the state pamphlet,

146
ALLY OF REPRESENTATIVE GOVERNMENT

Supplemented by the initiative and referendum, to
serve as a permanent background and for application
when called for, the representative system will gradu-
ally but surely enter upon a period of honor and use-
fulness hitherto never surpassed and probably never
equaled. Relieved of the unnatural excess of power
under which they now stagger and sometimes fall, legis-
lative bodies will cease to be attractive objects for brib-
ery and secret influence. Log-rolling will greatly dim-
inish. The power of bosses and rings will be under-
mined. Seats in the legislatures will then begin to be
unattractive to grafters. At the same time they will
become more attractive to high-minded, public-spirited
citizens. There will be a fairer chance that a man
clean when elected will stay clean. It will make it safe
to reduce the size of legislatures and to diminish
greatly the number of elective officers. The party ma-
chines and bosses once permanently out of control, we
may reach the point of competing successfully with the
corporations in attracting the best young talent to the
public service.

With direct legislation in vogue, it is not necessary
to retire a faithful legislator to express disapproval
of some of his measures. The electorate, while re-
turning the man to office, can overrule the measures ,
with no more reflection on his honor or usefulness
than is involved in the overruling of a lower court by
a higher. Honest and able representatives are hence
likely to be repeatedly reélected. Long tenure is as
valuable to public as to private business. Where the

147
THE INITIATIVE, REFERENDUM AND RECALL

people have been in control long enough for this result
to show, as in Switzerland and in the New England
towns, they are seen to act upon this principle. In
Switzerland it is rare that a new member appears in
a legislative body except to fill a vacancy due to death
or voluntary retirement. In New England towns it
is common for faithful officials to be retained in office
practically for life, their annual reélections being fre-
quently uncontested. With a seat in the legislature
thus robbed of its charms for all but the public-spirited,
and with reélection practically assured to men of
proved merit, real legislative experts in good number
may gradually be developed, and may yield good
service.

In view of such untested possibilities, it is beside
the mark to wonder whether representative govern-
ment is a failure. We begin to realize that it has not
yet been fairly tried, at least not in recent years. We
realize that our legislators have been working under
almost intolerable conditions. They have been con-
tinually exposed to temptations that no ordinary man
ought to be asked to face, and it is a tribute to human
nature that so many of our legislators have stayed
straight. With the initiative and referendum in force
“legislators will have all the power that is ever ac-
corded to representatives and agents in business,
which is all that is wholesome or attractive to worthy
citizens of a democratic republic. That final enacting
power is far from essential to the dignity of a legisla-
tive body is shown by the universal respect in which

148
ALLY OF REPRESENTATIVE GOVERNMENT

our American constitutional conventions have always
been held.

While a sufficiency of power is thus left with the
representatives, a salutary increase of responsibility
is thrown upon the voter. It brings him, to some pur-
pose, into closer touch with great affairs. It enables
him to vote for measures apart from men, and for men
apart from measures. He can begin to assume the
stature of a man, to become a sovereign in fact as
well as in fancy. It will enable him to settle some-
thing at an election besides the party label of office-
holders, which in turn settles little except which fac-
tion shall dispense the spoils of office. For we know
only too well that platforms are “‘ merely to get in on,
not to ride on.” Even if they were expected to be
observed, platforms are composites which rarely rep-
resent, except in the roughest way, the views of any
one thoughtful voter.

The new task proposed for the voter, though in-
spiring, is relatively simple. It differs widely from
legislation in the ordinary sense. The originating and
drafting of bills can manifestly never fall as a burden
on the mass of the voters. For this service the com-
munity can always command ability as wise, as disin-
terested and as practiced in legislation as any who now
do such work. The average voter’s part in the work
is deliberation, discussion and the registry of his de-
cision. This is no new task for him; the only novelty
is in having a chance to do it intelligently, and to see
his decision go into effect.

149
THE INITIATIVE, REFERENDUM AND RECALL

The voter, going into the booth, has known for
months just what is coming up and in just what form
it is coming up. There is no thought of possible
amendment. With regard to each measure he has sim-
ply to approve or reject. He has had plenty of time
to make up his mind. If a measure is objectionable
in purpose or form, or is lacking in clearness, he will
of course reject it and await—or cause—its reappear-
ance in a more acceptable form at a subsequent elec-
tion. The voter is thus more like a juror than like a
legislator. His capacity for intelligent, discriminating
work at a single election is therefore large—much
larger, as experience shows, than at first thought might
seem possible.

In 1909, for example, the voters of Portland, Ore-
gon, in a city election, besides voting for mayor and
other officers, voted discriminatingly and with sus-
tained interest on thirty-five measures, thirteen of
which they passed. The average vote on each of the
thirty-five measures was slightly over eighty-one per.
cent. of the total vote for mayor, with a range from
seventy-five per cent. to ninety per cent. The majori-
ties, both yes and no, were sometimes heavy, some-
times light. There is every evidence that the voting
in each case reflected the calm judgment of the voters.
In Denver, in the election of May, 1910, the voters,
besides electing city officers, dealt discriminatingly
with a list of twenty-one measures, some of them
trickily worded. Moreover, in this case, they had to
face an enormous corruption fund and all that the

150
ALLY OF REPRESENTATIVE GOVERNMENT

combined party machines and selfish interests could
do to mislead. The result was a triumph for the peo-
ple at every significant point. The people’s capacity
for direct legislation is not likely to be subjected to
severer tests than it has already stood with signal
success,

Through direct eae: the state will offer an
attractive field of usefulness for such of her citizens
as do not care to give up their whole time to public
life. Public-spirited citizens, without dislocation of
business or profession, may and will devote a much
larger share of their time than now to the considera-
tion of public questions. If they conceive of a desira-
ble step in legislation, they will not have to contrive
to get into office and to stay there long enough to ac-
complish their ends. They have a dignified and honor-
able method of presenting to the final authority, for
adoption or rejection, the best fruits of their labors,
free from the risk of mutilation or distortion by ill-
informed, overworked, or corrupt legislatures. This
alone would be a powerful means of bringing sponta-
neously to the public service, and at no expense, a large
amount of talent of the best possible sort for which
there is now little encouragement in public life. This
is the talent on which we should depend for the most
serious lawmaking, and which we now have little
chance to utilize. The legislature will thus be facing a
reasonable and wholesome competition and the public
cannot fail to profit from it.

Sometimes officeholders or party machine men

I5I
THE INITIATIVE, REFERENDUM AND RECALL

profess a great fear that direct legislation will result in
“mob rule.”” This must be taken to mean that they
fear, probably with reason, that the people, after weeks
of deliberation and with adequate information, would
not support their pet schemes. Prospective abundance
of popular majorities in their favor would neither
excite their alarm nor be called by them “ mob rule.”
No; mob action finds a more promising field in nomi-
nating conventions and even town meetings, than in
the long process of gathering signatures, weeks of
discussion and deliberation, and the quiet vote on an
Australian ballot in isolated, individual booths.

Direct legislation is not only a safeguard against
mob rule, but against the only thing likely with us to
lead to violent revolution, namely, machine rule for the
benefit of the privileged few. Majority rule precludes
both mob rule and machine rule, for majority rule
brings into play the great patient mass of honest, hard-
working citizens, ordinarily silent and little felt. They
abhor alike the violent methods of the mob and the
intriguing of “ politics.” No less do they shrink from
making themselves individually conspicuous in hope-
lessly protesting against powerful wrongs which they
can, though they ought.not, endure. They are likely
to suffer in silence until driven to extremes, rather
than seek relief through the distasteful and inadequate
means now at their disposal. To provide the people
with orderly and regular means of expressing them-
selves on equal terms with all their neighbors, with the
certainty that their will thus expressed will take effect,

152
ALLY OF REPRESENTATIVE GOVERNMENT

is the logical way to ensure the healthy and natural
progress which in the long run is the only preventive
of violent upheaval.

An additional advantage in direct legislation is the
education which it affords the average voter. One
cannot help believing that the consequent toning-up of
the public standard of thought and morals would be
in the long run the most important feature of the sys-
tem. Direct legislation tends thus automatically to
produce a highly trained and self-respecting electorate,
and to lay the deepest and most promising foundation
for permanent good government. Direct legislation
is the only orderly means known for accurately and
unmistakably expressing the public will as to legisla-
tion, and for making it prevail. It gives at last a fair
approach to a proper and worthy means of registering
public sentiment, well defined by some one as “ the
deliberate and reasoned judgment” of the people. It
is as effective a balance wheel against mere populas
clamor as it is a safeguard against the silent scheming
of the crafty few. Direct legislation thus opens for
the first time a fair prospect for the early realization
of the cherished American ideal—a government by as
well as of and for the people.

‘The direct legislation idea is no novelty among
free peoples. It may be seen in the institutions of the
Plymouth Colony. It appears in our time-honored
New England town meeting and the even more ancient
Swiss Landesgemeinde, and German folk-moot, all of
them perfect exemplifications of the direct legislation

11 153
THE INITIATIVE, REFERENDUM AND RECALL

principle on a small scale. It appears in our popular
ratification of state constitutions and their amend-
ments, usually insisted upon from the first, in spite of
the pitifully inadequate facilities of our early days.

More recently, we note the steady extension of
direct legislation through the initiative and referen-
dum from canton to canton in Switzerland, its applica-
tion to Swiss federal legislation—the referendum in
1874 and the initiative for constitutional amendments
in 1891—and its adoption in the last decade by city
after city and state after state in this country. Direct
legislation (usually accompanied from the start by the
recall) is an essential feature of nearly all modern city
charters, and those without it will doubtless have to
add it sooner or later to get satisfactory results. Nota-
ble among the direct legislation cities stand Los An-
geles, Des Moines, Haverhill and Gloucester, and
the newest recruits, Berkeley, California, Colorado
Springs, Grand Junction, Colorado, and Burlington,
Iowa. Similar examples among the states are South
Dakota since 1898, Oregon since 1902, Montana since
1906, Oklahoma since 1907, Maine and Missouri since
1908, Arkansas and Colorado since Ig1o, and Arizona
and California in 1911.

For examples of the effect of direct legislation, we
naturally turn first to Switzerland, where it has been
in operation on what may be called a large scale for
fifty to eighty years. With the aid of direct legisla-
tion as a result of its moral influence as well as by its
direct application, Switzerland has, wherever she has

154
ALLY OF REPRESENTATIVE GOVERNMENT

applicd it, rid herself of the misrule and exploitation
which were previously rampant, as they had been for
centuries, in all except the minute but ultra-democratic
cantons.1 Thanks to sound democratic idealism, sup-
ported by suitable machinery for its expression, she
has now come to be an admirably governed country.
Mr. James Bryce, the present British ambassador to
the United States, declared to a Cambridge audience
in 1904 that Switzerland is the most successful de-
mocracy that the world has ever seen.

Further expert testimony to what is generally _
known and admitted by the well-informed and disin-
terested is hardly needed, but the New International
Encyclopedia, in its article on Switzerland, expresses
it so naively that it may be worth citing. After a
lengthy account of the civil wars and political turmoil
in the early part of the nineteenth century, it disposes
of the rest of the century with the single remark that
“the history of Switzerland for the past quarter of a
century has been very uneventful, though marked by
a steady material, intellectual and political growth.”

All this does not mean that Switzerland is an un-
alloyed paradise. Some of the great human problems
seem as far from solution in Switzerland as elsewhere.
It does mean that the government promptly reflects
public sentiment, and at the same time is free from

 

1It is to these little cantons including less then ten per cent. of
the area and less than seven per cent. of the population of the present
whole country that Switzerland owes her otherwise quite undeserved
reputation for century-old free political institutions.

155
THE INITIATIVE, REFERENDUM AND RECALL

violent fluctuations of policy. It means that the gov-
ernment is administered efficiently and in the interest
of the public good. It means that Switzerland, with
a form of government modeled largely upon our own,
by a modification which might have been suggested by
our Declaration of Independence, has secured good
government in a democratic republic.

The excellent results in Switzerland are to be seen
not only in her federal affairs, but also in the affairs
of an overwhelming majority of her cantons. We
must not, however, overlook Canton Fribourg, the
only one of the twenty-two Swiss cantons as yet una-
ble to equip herself with the initiative and referendum.
She has still the unperfected or “ pure” representative
system characteristic of our American states and cities
and of the old times in the rest of Switzerland. This
brings with it, there as here, boss rule and all that
boss rule implies. The legislative body is nominated
by the boss, elected by the people and managed by the
boss. Prominent citizens are skillfully kept in line by
a share in the plunder for themselves or for their
churches or philanthropies, or by fear of loss of favor
with the two chief banks, both creatures of the boss.
There is bribery, extravagance, subordination of the
general interest to private business, the heaviest per
capita cantonal debt in Switzerland, and the public
apathy which naturally follows widespread hopeless-
ness. The agitation for the initiative and referendum
is still kept up by Fribourg patriots as their only hope,
but all orderly means of success are in the control of

156
ALLY OF REPRESENTATIVE GOVERNMENT

the boss who, of course, fights them and will fight
them for his political life.

As a contrast to Fribourg, it should be observed
that the chief cantons of Switzerland, Berne and Zu-
rich, the former a farming, the latter a manufacturing
canton, both far in the lead of their neighbors in pop-
ulation and importance, are among the cantons having
the initiative and referendum in their most radical and
readily workable form. Zurich is clearly the most
advanced of the cantons in this respect, and Berne is
surpassed, and at that only slightly, by few besides
Zurich. In short, where the initiative and referendum
are most readily set in motion, there have developed
clean government and leadership in civic and indus-
trial growth. In the only canton where there is neither
the initiative and referendum nor pure democracy,
there is misrule and political apathy of the familiar
American type.

The Swiss success under perfected representative
government may reasonably be expected to be repeated
in this country, for the strength of the system lies in
giving common human nature a fair chance to do itself
justice. Human nature in Switzerland is very much
like that elsewhere. That it is like that in this coun-
try is to be seen from the fact that representative gov-

 

1 This bit of evidence from Fribourg is drawn from an article en-
titled ‘‘The Only Political Boss in Switzerland,’ by George Judson
King, Secretary of the Ohio Direct Legislation League, in the Twen-
tieth Century Magazine for July, 1910. The article is based on recent
personal observations in Canton Fribourg.

157
THE INITIATIVE, REFERENDUM AND RECALL

ernment without direct popular control results in de-
moralization and bad government there just as it does
here, and in just the same way there as it does here.

It is sometimes suggested, however, that little
Switzerland, good as her results are conceded to be, is
not an adequate precedent for an immense nation like
the United States. But a small nation may exemplify
a principle essential to the success of a large nation.
A sound fundamental principle holds regardless of the
scale of the enterprise. That a self-governing people
must have effective control over the laws under which
they live would seem to be a principle of this kind.
Details may require adjustment, but the principle will
hold. But all that aside, the important comparison is
not so much with our nation as with our cities and
states. Switzerland, unhomogeneous in population,
preéminently a manufacturing nation, larger than
Massachusetts, Rhode Island and Connecticut com-
bined, with a population slightly larger than that of
Massachusetts, is plainly an excellent precedent for
the adoption of direct legislation by individual Amer-
ican cities and states.

Moreover, there may never be need for a federal
initiative and referendum system for this country.
With the rings once permanently ousted from our
cities and states, the federal government should auto-
matically run clear. For the rings that do the plun-
dering at Washington could manifestly not long sur-
vive without their intrenchments in the cities and
states. At any rate, it is obviously correct tactics now

158
ALLY OF REPRESENTATIVE GOVERNMENT

to go right ahead for the initiative and referendum in
states and cities. Our only disappointments with it,
judging by experience elsewhere, are likely to arise
from excessive restrictions which the legislatures may
impose upon it.

New England, the home of the town meeting, en-
joying the inspiration of the Massachusetts and other
New England states constitutions, with Maine already
in the direct legislation ranks, may be expected to take
especially kindly to this new and long step toward the
realization of her ancient ideals.

The real questions for us in New England to
answer are:

I. Are we now as fit for this forward step as the
Swiss were when they were putting the system in
operation thirty to fifty years ago?

2. Is not even a complicated law, properly ex-
plained and vouched for, as suitable a thing for a popu-
lar vote as a choice between complicated candidates
whose actions no one can foresee?

3. Is not an occasional vote on an ordinary law a
natural and reasonable addition to our time-honored
system of popular votes on state constitutions and their
amendments ?

4. Is it not worth while to disentangle measures
from men and submit to popular vote definite and dis-
tinct propositions instead of mixtures of candidates,
parties and platforms?

To ask these questions in America is to answer
them in the affirmative. All parts of the country are

159
THE INITIATIVE, REFERENDUM AND RECALL

coming to see the point. Oregon, nearly half as large
again as all New England combined, is setting us a
most encouraging example. Seven years ago she
adopted direct legislation. She was then deep in politi-
cal corruption. Thanks to the initiative, and measures
secured with it which legislatures had refused to pass,
she has made great progress toward better government
and the house-cleaning is going right on.’ The outcries
of the local plunderers show that they feel their power
slipping away. Their intrigues for the destruction of
the initiative and referendum show that they know the
cause. .

We shall be interested to see how direct legislation
fits in with the ideas of our wonderfully far-sighted
and successful constitution framers. It will be worth
while to quote a few passages from the constitution of
the commonwealth of Massachusetts—the oldest of
their works—the spirit of which is no stranger in other
parts of the country. Articles V, VII, and VIII of
that honored document will give the ideas of the fa-
thers on the relation of the people to their representa-
tives.

“ Article V. All power residing originally in the

 

1 See the speech of Senator Bourne of Oregon in the United States
Senate, May 5, 1910 (obtainable from the Massachusetts Direct Leg-
islation League), for an extended description of this remarkable
work, Senator Bourne, a Republican and by birth a Massachu-
setts man, and his colleague, Senator Chamberlain, a Democrat,
born in Mississippi, are alike active advocates of the initiative and
referendum after observing its eight years of operation in their home
state.

160
ALLY OF REPRESENTATIVE GOVERNMENT

people, and being derived from them, the several mag-
istrates and officers of government, vested with author-
ity, whether legislative, executive, or judicial, are their
substitutes and agents, and are at all times accountable
to them. .

“Art. VII. Government is instituted for the com-
mon good; for the protection, safety, prosperity, and
happiness of the people; and not for the profit, honor,
or private interest of any one man, family, or class of
men: Therefore the people have an incontestable, un-
alienable, and indefeasible right to institute govern-
ment; and to reform, alter or totally change the same,
when their protection, safety, prosperity and happiness
require it.

“Art. VIII. In order to prevent those who are
vested with authority from becoming oppressors, the
people have a right, at such periods and in such man-
ner as they shall establish by their frame of govern-
ment, to cause their public officers to return to private
life; and to fill up vacant places by certain and regular
elections and appointments.”

On reading these sturdy New England doctrines
one must conclude that the only reason why the fathers
did not then and there establish direct legislation for
the state and for cities as they might develop, was that
it was at that time physically impossible. Mechanical
invention had not advanced far enough to permit it
even if they had conceived the idea. We must not
forget that their facilities for disseminating informa-
tion and gathering returns were little superior to those

161
THE INITIATIVE, REFERENDUM AND RECALL

of Julius Cesar. They knew no more of railways than
Cesar did, such highways as they had were not so
good as Cesar’s. But they resolutely did all that was
practicable under the mechanical conditions of ‘their
time. They provided an obligatory referendum on
the adoption and amendment of the constitution of
the commonwealth, even though it might and did take
weeks to put the matter to vote and get the returns.
And it is clear that nothing was further from their
minds than that the will of representatives should pre-
vail over the will of the people, some modern office-
holders to the contrary notwithstanding.

Now that direct legislation, as a working insti-
tution on a large scale, has become a possibility
through the introduction of the modern means of
spreading news and ideas by the telegraph, high-speed
printing press, and the railway, we can proceed from
the point where the fathers were forced to stop and
can vindicate more clearly than ever the soundness of
their noble idealism.

In closing it may be said that the initiative and ref-
erendum appeal particularly to progressive Americans
in whom still lives the spirit of the liberty-loving men
who founded this nation. Such citizens readily com-
prehend the necessity of controlling the important re-
sults, and of not limiting themselves to toying at gov-
ernment while privilege does the governing. They
take great satisfaction, moreover, in a remedial meas-
ure so thoroughly in harmony with the old ideals and
institutions. It involves, after all, only a bit of addi-

162
ALLY OF REPRESENTATIVE GOVERNMENT

tional machinery, and depends for its success only
upon our fitness for self-government.

Of course direct legislation is only a piece of mech-
anism. It will not suffice merely to set it up. It must
be made to work promptly and with vigor when re-
quired. This will take real citizens. Oregon shows
that such citizens still exist—some of them of New
England or other American stock, some of them born
in old-world monarchies.

The success in Switzerland; the steady progress
and gratifying results in America; the strenuous op-
position by favorites or managers of political machines ;
the misrepresentations by professional lobbyists and
conspicuous officeholders, echoed in ready-made “ edi-
torials,” all indicate that the initiative and referendum
are measures justly destined to receive an increasing
amount of public attention and regard.

With the initiative and referendum in force, we
shall be equipped as never before to resist enemies
from within, enemies far more dangerous to our free-
dom than any foreign foe.

The initiative and referendum-may well be the
means of instituting on a permanent basis the responsi-
ble kind of representative government which our fa-
thers lived and died to secure.

The initiative and referendum may well prove to
be the salvation of the momentous experiment led by
Jefferson, Hancock, Franklin, the Adamses and Wash-
ington.
CHAPTER VII
REPRESENTATIVE AS AGAINST DIRECT LEGISLATION +4

It is not always that there is a direct relation be-
tween the sound and fury of language and its real
meaning, but such imposing words as the initiative, the
referendum, and the recall do not indicate innovations
of a light and trifling kind in the character of our
institutions. As the doctrines which they convey are
practiced in some of the states of the Union, and as
they are proposed for adoption in other states, they
involve no less than a radical change in our method
of government. In effect, they propose the substitution
of direct for representative government, the establish-
ment of the direct action of the people, not merely
in selecting their agents, but in framing and executing
their laws.

To most of us the proposals are full of novelty, and
it is not too much to say that, as a people, we have
given them no consideration -worthy of the name.
Have we explored the past to learn whether similar
experiments have been tried; and, if tried, what has

 

1 By Congressman Samuel W. McCall. Reprinted by permis-
sion from the Atlantic Monthly, October, 1911.
164
REPRESENTATIVE LEGISLATION

been the effect? Have we reflected upon the obvious
limitations, upon the utterance by great masses of men
of final and definite regulations for the conduct of a
complex society? Have we considered to what extent
the most doubtful results under our present structure
of government are due to the overzeal of representa-
tives to respond to the transient and noisy, and often
misleading, manifestations of popular opinion, and to
their failure to act bravely as the instruments, not of
the people’s passions, but of their interests, and to re-
quire them to select other agents, if they shall insist
upon the doing of wrong?

At the threshold of the discussion we encounter the
usual epithets. The advocates of change are apt to
seek popular favor by decorating themselves and their
proposed innovation with some lofty adjective, and in
a similar fashion to cover their opponents with oblo-
quy. The quality assumed by the proponents of one or
all of this trinity of reforms they express in the word
“progressive.” They are advocating “ progressive ”
methods of government, while those who disagree with
them stand for reactionary methods. “ Progressive ”
is an alluring word. Everybody believes in progress
if it be of the proper kind, and a due amount of voci-
feration on the part of those claiming a monopoly of
the virtue may serve to banish skepticism as to the
kind. But if the question were to be settled by
epithets, there is some ground at least for asserting
that they should be transposed in their application.
Representative government is comparatively modern;

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THE INITIATIVE, REFERENDUM AND RECALL

direct government of the democratic kind is ancient;
and the latter was deliberately discarded for the former
by the founders of our government. I will not cite
such a statesman as Madison, not because the heavy
debt which the cause of free and regulated popular
government owes him can ever be discharged, but be-
cause in the passionate rhetoric of the self-styled Pro-
gressives, he is set down as a reactionary. I will
choose an authority who still remains above suspicion,
and will take the author of the Declaration of Inde-
pendence, which even to-day is considered radical in
its democracy. In speaking of ‘the equal rights of
man,” Thomas Jefferson declared that:

“Modern times have the signal advantage, too, of
having discovered the only device by which these rights
can be secured, to wit,—government by the people, act-
ing not in person, but by representatives chosen by
themselves.”

The framers of the constitution were entirely fa-
miliar with the failure of direct democracy in the gov-
ernment of numerous populations, and they were in-
fluenced by their knowledge of that failure in devising
our own structure of republican government. It is
now proposed to abandon the discovery of modern
times, to which Jefferson referred and which he de-
clared to be the only method by which rights can be
secured, and to put in its stead the discarded device of
the ancients. Who, then, are the reactionaries: those
who are opposed to the substitution of direct for rep-
resentative government and. are in favor of the pro-

166
REPRESENTATIVE LEGISLATION

gressive principles of the American constitution, or
the supporters of direct government who advocate the
return to the reactionary policies which thousands of
years ago demonstrated their destructive effect ‘upon
the government of any considerable populations? It
does not follow that to be a reactionary is to be wrong.
The wise reactionary may sometimes preserve the gov-
ernment of a state, and even its civilization. Whether
the initiative, referendum and recall embody sound
political principles must be determined by other tests.
But their advocates should not masquerade. If they
choose to attach to themselves any label, they should
frankly spread upon their banner the word “ reaction-

aD

ary.

The framers of our constitution were endeavoring
to establish a government which should have sway over
a great territory and a population already large and
which they knew would rapidly increase. They were
about to consummate the most democratic movement
that had ever occurred on a grand scale in the history
of the world. They well knew from the experiments of
the past the inevitable limitations upon direct demo-
cratic government, and, being statesmen as well as
democrats, they sought to make their government en-
during by guarding against the excesses which had
so often brought popular governments to destruction.
They established a government which Lincoln called
“of the people, by the people, for the people,” and in
order effectively to create it they adopted limitations
which would make its continued existence possible.

167
THE INITIATIVE, REFERENDUM AND RECALL

They knew that, if the governmental energy became
too much diluted and dissolved, the evils of anarchy
would result, and that there would follow a reaction
to the other extreme, with the resulting overthrow of
popular rights. They saw clearly the line over which
they might not pass in pretended devotion to the demo-
cratic idea without establishing government of the
demagogue, by the demagogue, and for the demagogue,
with the recoil in favor of autocracy sure speedily to
follow; for they knew that the men of the race from
which they sprang would not long permit themselves
to be the conscious victims of misgovernment, and that
they would prefer even autocracy to a system under
which the great ends of government in the na-
tion should not be secured, or should be even per-
verted.

We are in danger of forgetting the essential pur-
pose of government: that it is not an end but a means,
that the people do not exist for the government but
that government exists for the people. The idolatry
of government, or of its institutions, has been as de-
basing and injurious as any idolatry that has ever af-
flicted mankind. It has frequently been the agent of
gross and wholesale oppression; it has frequently been
the means by which the many have been kept in servi-
tude and subjection; and, until the establishment of
our own system, the governments have been few which
have had for their chief purpose to safeguard and pro-
tect the individual, and to hold over him the shield of
law, so that he might be secure in his life, his liberty,

168
REPRESENTATIVE LEGISLATION

the fruits of his labor, and in his right as an equal
member of the state.

And when I speak of the individual, I mean the
chief thing that is essential in the meaning of the term
“the people.” I do not accept the latter term in the
sense in which it is so often sweetly used by those who
desire our votes. I am unable to see how any good,
coming to a mass of men, can be felt in any other
way than by the individuals in the mass. And until
somebody shall point out a higher consciousness than
that of the individual man or woman or child, he can
hardly be heard to deny that the individual man or
woman or child is, after all, the ultimate concern of
the state.

The notion that there is a collective personality
called “the people,” separated from the individuals
who compose it, and which may be used to oppress
each one and all of its component parts in turn, may
well have been a conception of the Greek demagogues
by whom it was so fittingly illustrated in practice. I
cannot understand how there can be any freedom that
is not in the last analysis individual freedom. How-
ever great a mass of men you may have in a nation,
however powerful physically it may be, if each indi-
vidual is the victim of oppression, if he is denied rights,
if there is no forum open to him, where he can be
heard to say against the majority, “ This is mine,”—
then “the people ’’ have no such thing as liberty, they
have no such thing as popular rights. As to the “ com-
posite citizen,” he obviously is nobody who ever has

12 169
THE INITIATIVE, REFERENDUM AND RECALL

existed or ever will exist. When the advocates of a
reform, ignoring the man of flesh and blood in the
street, are conducting their operations with reference
to this mythical person, they should emigrate to Uto-
pia.

Is it for the interest of the individual members of
our society to have the great mass of us pass upon the
intricate details of legislation, to execute our laws and
to administer justice between man and man? That
I believe to be in substance the question raised by the
initiative, the referendum and the recall, as they are
now practically applied in at least one of the states of
the Union, the example of which is held up as a model
to the other states. With an infinitesimal responsi-
bility, with only one vote in a million, how seriously
would each one of us feel called upon to withdraw
from his own private pursuits and to explore in all
their details the complicated questions of government?
It would be imposing an impossible task, scattered as
we are and unable to take common counsel, to require
us in the mass to direct the work of government.

First, with regard to the initiative. In our legis-
lation the work of investigation and of perfecting de-
tails is of such great difficulty that proposed laws are
distributed among various committees, which are
charged with the duty of considering their exact terms.
The legislative body as a whole, although its members
are paid for doing the work, cannot safely assume to
pass upon the intricate questions of legislation without
investigation by committees selected with reference to

170
REPRESENTATIVE LEGISLATION

their fitness for the task. The proposed law as per-
fected by a committee is brought before the representa-
tive assembly and it is there again discussed and sub-
jected to criticism, both as to policy and form, and
in this open discussion defects often appear which re-
quire amendment, and sometimes the defeat of the
bill. And even with these safeguards laws often find
their way upon the statute-books which are not best
adapted to secure the purposes even of their authors.

But what would be the procedure under the initia-
tive? In Oregon a law may be initiated upon a peti-
tion of eight per cent. of the voters, and it then goes
to the people upon the question of its final enactment
without the intervention of any legislature. Some
man has a beautiful general idea for the advancement
of mankind, but beautiful general ideas are exceeding-
ly difficult to put into statutory form so that they may
become the rule of conduct for a multitude of men.
Another man may have some selfish project, which,
like most selfish projects, may be concealed under spe-
cious words. The beautiful idea or the selfish scheme
is written by its author in the form of law, and he
proceeds to get the requisite number of signers to a
petition. With a due amount of energy and the pay-
ment of canvassers, these signatures can be secured by
the carload, and the proposed law then goes to the
people for enactment, and the great mass of us, on
the farm, on the hillside, and in the city, proceed to
take the last step in making a law which nine out of
ten of us have never read. And this is called securing

171
THE INITIATIVE, REFERENDUM AND RECALL

popular rights and giving the people a larger share in
their government!

The people, at the election in Oregon held in 1910,
passed upon proposed laws which filled a volume of
two hundred pages, and they passed upon them all in
a single day, each voter recording his verdict at the
polling booth upon both the candidates and the pro-
posed laws. In the ordinary legislative body, made up
of no different material from that of which the peo-
ple are composed, an important question may be con-
sidered for a day, or even for a week; and then, with
the arguments fresh in their minds, the legislators
record their votes upon the single measure. What a
delightful jumble we should have if forty different
statutes were voted upon in the space of a half-hour
by the members of a humdrum legislature!

Of course, one must be cautious about expressing
a doubt that the people in their collective capacity can
accomplish impossibilities. You may say of an individ-
ual that he should have some special preparation be-
fore he attempts to set a broken arm or perform a
delicate operation upon the eye. But if you say that
of all of us in a lump, some popular tribune will de-
nounce you. And yet there is ground for the heretical
suspicion, admitting that each one of the people may
have in him the making of a great legislator, that
there should be one simple prerequisite which he should
observe in order to be any sort of a legislator at all.
He should first read or attempt to understand the pro-
visions of a bill before solemnly enacting it into law.

172
REPRESENTATIVE LEGISLATION

One can scarcely be accused of begging the question
to say that the voters would not read a whole volume
of laws before voting upon them. The slightest
knowledge of human nature would warrant that asser-
tion.

How many even of the most intelligent of our peo-
ple, of college professors, of ministers, read the stat-
utes that have already been passed and that are to
govern their conduct? Even lawyers are not apt to
read them generally, but in connection with particu-
lar cases. But if some proof were necessary, one has
only to cite some of the Oregon laws. For example,
there are two methods of pursuing the salmon fisher-
ies in the Columbia River: in the lower and sluggish
waters of the stream, fishing is done by the net; and
in the upper waters by the wheel. The net fishermen
desired to prohibit fishing by the wheel, and they pro-
cured sufficient signatures and initiated a law having
that object in view. On the other hand, the wheel
fishermen at the same time wished to restrict fishing
by the net, and they initiated a law for that purpose.
Both laws went before the people at the same election
and they generously passed them both, and thus, so
far as the action of the people was concerned, the
great salmon fisheries of the Columbia were practically
stopped.

A law was “ initiated’”’ by signatures and was en-
acted by the people at the election in November, 1910,
providing for the election of delegates to the national
political conventions by popular vote. The law for-

173

“cc
THE INITIATIVE, REFERENDUM AND RECALL

bade each voter to vote for more than one candidate.
But upon the usual basis of apportionment Oregon is
entitled to ten delegates in a national convention. If
some candidate should be preéminently fitted above
all others for the place and should receive all the votes,
the state would have only a single delegate in the con-
vention. If the voter has the right to vote for all the
candidates for the whole representation of his state in
the electoral college, what semblance of a reason can
there be why he should not have the same participation
in the preliminary election, when the candidate, who
may finally be elected president, is to be chosen? The
same law forbids a voter from voting for the nomina-
tion of more than one candidate for presidential elec-
tor. Thus a minority of a party in the state may nomi-
nate candidates for electors hostile to its presidential
candidate. If the vote of the presidential electors of
Oregon shall not some time be divided, even though
the popular vote may have been strongly in favor of a
given candidate, it will not be the fault of this law.
It seems rather superfluous to cite instances to
prove that, where the final legislative body is denied
the power of meeting and discussing the provisions of
a proposed law, there will be loose and freakish legis-
lation of the worst kind. Mr. Woodrow Wilson, be-
fore he essayed the exacting role of the practical poli-
tician, declared before the students of Columbia Uni-
versity that a government cannot act inorganically by
masses, it must have a law-making body. It can no
more make laws through its voters than it can make

174
REPRESENTATIVE LEGISLATION

laws through its newspapers. And in the same course
of lectures he declared that:

“We sometimes allow ourselves to assume that
the ‘initiative’ and the ‘referendum,’ now so much
talked of and so imperfectly understood, are a more
thorough means of getting at public opinion than the
process of our legislative assemblies. Many a radi-
cal programme may~get what will seem to be almost
general approval if you listen only to those who know
they will not have to handle the perilous matter of
action, and to those who have merely formed an
independent, that is, an isolated opinion, and have not
entered into common counsel; but you will seldom
find a deliberative assembly acting half so radically as
its several members have professed themselves ready
to act before they came together into one place and
talked the matter over and contrived statutes.”

After Mr. Wilson entered upon his political career,
he changed his mind, but his recantation in no degree
affects the weight of the argument to which I have
referred. The “common counsel,” of which he speaks
is an indispensable process in the making of laws, and
whenever our legislative bodies impose serious limita-
tions upon the process, it is usually to the detriment
of the character of the laws passed; and the more
grave and statesmanlike the deliberations of those
charged with the responsibility, the better it will be for
the state. For this vital process there would be substi-
tuted the enthusiasm of somebody who believes he
has devised some statutory cure-all for the ills that

175
THE INITIATIVE, REFERENDUM AND RECALL

afflict the body politic, and embodies his enthusiasm in
a bill. He seconds himself, as any one may, with the
necessary signatures to a petition; and then without
coming together and taking common counsel, and often
without reading what has been written, the great mass
of us solemnly proceed to vote. Such a procedure
would put a test upon the people under which no nation
could long endure.

The referendum is somewhat os than the initia-
tive, but as a settled policy in the making of ordinary
statutes it is indefensible. It can be used upon con-
crete propositions that are not complex in character,
and especially upon constitutional propositions which
ordinarily enunciate general principles. In the case
of constitutional changes, however, they should never
take effect without the support of a clear majority of
the voters, and in advance of their action they should
have the support of a large majority of the legislative
body, such as is provided in Massachusetts, so that our
constitutions should have more stability than mere
statutes, and should not be subject to change with every
passing breeze.

I may illustrate again from the example of Ore-
gon—which is pointed out by the friends of these
reforms as a model, and whose people are heroically
subjecting themselves to political vivisection in the
testing of governmental experiments. An amendment
may be made to the constitution of that state by a
majority of those who vote upon the proposition in
question. An amendment was passed in one election,

176
REPRESENTATIVE LEGISLATION

by barely one-third of the legal voters, which pro-
vided that in civil cases three-fourths of a jury might
render a verdict, that no new trial should be had where
there was any evidence at all to sustain the verdict,
and making other important changes in the method
of administering justice. Constitutional changes should
not be made, except in deference to a pronounced and
settled public opinion, which cannot better be deter-
mined under our system than to require the action of
successive legislatures and afterwards a direct vote of
the people.

The referendum may sometimes profitably be used
in connection with questions affecting municipalities
where each voter has an appreciable interest in the
solution of the question and is familiar with the condi-
tions upon which the solution depends; but as a step in
the process of passing statutes of the usual character,
statutes which create crimes and provide penalties for
their violation, or which have complicated regulations
of a business character, the use of the referendum
would be vicious. We are not in the mass adapted
to pass upon questions of detail, just as the thousands
of stockholders of a great corporation are not in a
position directly to manage its business affairs. The
function that we-can best exercise is that of selecting
agents for that purpose and of holding them responsi-
ble for results. Upon the questions relating to the
character of representatives, who are usually known
personally to the people, they have excellent means for
forming a judgment. But if they so often make a

177
THE INITIATIVE, REFERENDUM AND RECALL

mistake in their judgments of the men they select, as
we must infer from the arguments put forward in
favor of direct legislation, how much more would they
be apt to make mistakes in dealing with the compli-
cated questions involved in practical legislation?
The referendum takes away from the legislature
the responsibility for the final passage of laws and
permits it to shift the burden upon the people. Leg-
islators will be asked: “ Are you not willing to trust
the people to say in their wisdom whether a given bill
should be enacted?” The prevailing vice of members
of law-making bodies in our country is not venality, it
is political cowardice; and they will be ready to take
refuge in that invitation to trust the people. A witty
member of Congress from Mississippi once said that
he usually found it easier to do wrong than to expiain
why he did right. There will be no such difficulty
under the referendum. The legislator may dodge the
responsibility of voting upon some bad but specious
law where his political interests would lead him to
vote one way and his sense of duty another way. He
would only need to say that he believed in the people,
and would vote to refer it to that supreme court of ap-
peal. Even under the present system a legislator is
quite too much influenced by the noisy demonstrations
that may be made in favor of one side or the other of
a pending proposition, and some of the worst laws that
find their way upon the statute-books get there, not
because they are approved by the judgment of the leg-
islator, but in response to what he thinks may be the
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REPRESENTATIVE LEGISLATION

wishes of the people. And instead of voting for what
he honestly believes to be just and for the public inter-
ests, even against what may appear at the moment to
be popular sentiment, and then bravely going before
his constituents and attempting to educate them upon
the question, he quite too often tacks and goes before
the wind.

While the prevailing fault of legislative bodies is,
as I have said, political cowardice, the fault of the
voter is political indifference. There are far too few
of us who carefully study public questions and try to
secure exact information about them. We are attracted
by sensational charges, by lurid headlines in the news-
papers, and by generalities. We too often compla-
cently accept the estimate that is placed upon our pro-
found and exact political knowledge by the men who
are asking us to vote for them, and we are far from
giving that serious attention to the political issues
which we bestow upon our own private affairs.

There is a lawyer of very high standing at the
bar of his state who was astonished to be told that the
House of Representatives had an established order of
business which consumed the greater part of its time.
He imagined that the Speaker had practically un-
limited discretion in recognition. Another intelligent
man who was president of a great railroad could not
give the name of his member of Congress, although
he had probably voted for him for ten years, if he
had voted at all. Such instances are by no means rare,
and intelligent people of that sort who neglect their

179
THE INITIATIVE, REFERENDUM AND RECALL

public duties often become the easy victims of every
isme and dum.

We are so engrossed in our private business that
many of us give no attention to public questions, or we
too frequently bestow upon the latter such superficial
study that our action becomes the dangerous thing
that is based upon little knowledge. This condition of
indifference, even under our present system, produces
nothing but an evil effect upon the character of laws;
and this evil effect would be greatly intensified under
the initiative and referendum. Legislation may be ex-
pected to represent in the long run the fair average
of the information and the study of the body which
enacts it, whether that body be composed of four hun-
dred legislators or one hundred millions of people.

A reform that is most needed is one that will make
difficult the passage of laws, unless they repeal exist-
ing statutes. The mania of the time is too much legis-
lation and the tendency to regulate everybody and
everything by artificial enactments. The referendum
would not be likely to furnish the cure for this evil,
but would tend to increase the number of questionable
statutes that would be referred to the people; and some
of them would doubtless be enacted. If those who are
chosen and paid to do the work, and upon whom the
responsibility is placed, are sometimes found to enact
vicious laws, what would be the result if legislation
were enacted by all of us when we had made no special
investigation of details, when we should be quite too
prone to accept the declamatory recommendations of

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REPRESENTATIVE LEGISLATION

the advocates of legislative schemes and submissively
swallow the quack nostrums that might be offered for
the diseases afflicting the body politic?

The most dangerous statutes are those which deal
with admitted evils, and, in order to repress them, are
so broadly drawn as to include great numbers of cases
which should not fairly come within their scope or
to create a borderland of doubt where the great mass
of us may not clearly know how to regulate our con-
duct in order that we may comply with their prohibi-
tions. Just such statutes, with a basis of justice but
with imperfectly constructed details, would be most
likely to prevail upon a popular vote. If the forty-six
states of the Union, and the national government
which is the aggregate of them all, should have this
system of direct legislation, our statute-books would
very probably soon become a medley of ill-considered
reforms, of aspirations sought to be expressed in the
cold prose of statutes, of emotional enactments. per-
petuating some passing popular whim and making it
a rule of conduct for the future; and the strict enforce-
ment of our laws would mean the destruction of our
civilization.

And then, in order to perfect this scheme of popu-
lar government and to safeguard the rights of a help-
less people, in addition to all this, they offer us the
recall. Not merely are the laws to be directly enacted
by the people, but the execution of the laws is to be
conducted in the same way. There would be tem-
porary agents for the purpose of governing, but the

181
THE INITIATIVE, REFERENDUM AND RECALL

people would have ropes about their necks and at any
moment they would be subject to political extinction.
This power involves the supposition that the people are
omniscent and ever-watchful.

The constitution of Arizona seems to be in line
with the most advanced thought upon this subject.
That constitution provides that twenty-five per cent. of
the voters may institute a proceeding for the recall;
and when it is invoked the man whom they have
elected to an office is permitted either to resign in five
days or to defend himself in two hundred words,
upon a proceeding to throw him out in disgrace.

In Oregon, it very rarely happens that there is an
election in which the defeated candidate does not
receive twenty-five per cent. of the vote, and not infre-
quently he receives nearly one-half of it. It would be
a matter of no difficulty for him to initiate a recall and
practically to have the election over again; and so we
should have perpetual warfare over the holding of
office. That result has already clearly developed
where the recall is in force.

A public officer could not take the long view; he
could not patiently study the problems that confronted
him and carefully look into the conditions with which
his office had placed him in close contact, but of which
as a private citizen he could have only the most gen-
eral knowledge. But he would need to be careful to
do only those things which might be justified, not by
close inspection, but upon the most superficial view.
The office to which he has been elected gives him an

182
REPRESENTATIVE LEGISLATION

elevated point of view which he did not have before,
but he cannot avail himself of his wider range because
if he is no sooner in office than he must justify him-
self or retire in disgrace, he will be likely to do the.
thing most pleasing to the prevailing fancy and which
will adapt itself most easily to the momentary condi-
tion of the public mind. His political interests will
lead him to do the plausible and easily advertised
thing, and it may be the thing that will really injure
the people. .

Whether such a government may be called popular
or not, we should be likely always to have under it
government of the politician rather than government
of the statesman. I have been criticised for using an
expression similar to this, as if I had implied the con-
verse: that we now always have government by the
statesman ; but such an inference can be drawn only by
a careless or an unscrupulous thinker. That we some-
times have government by the statesman is undeniable;
but that our government is perfect, nobody would pre-
tend. Edmund Burke asserted in effect the same thing
at a time in his career when he was the most liberal,
as he was always the most philosophical, of British
statesmen. In appealing to his constituents for the
right of a representative “to act upon a very enlarged
view of things,” and not to look merely to “the flash
of the day,” he declared: “ When the popular mem-
ber is narrowed in his ideas, and rendered timid in his
proceedings, the service of the Crown will be the sole
nursery of statesmen.” According to Burke’s view,

183
THE INITIATIVE, REFERENDUM AND RECALL

the constant response to the popular mood would at
least banish statesmen from the service of the people,
if it did not limit it to the politicians.

It is not difficult to turn back to the supreme crises
in American history, when its greatest figures were
heroically struggling for what they saw to be for the
interests of their country, and, if the policy of the

— recall had been in force, to see how the whole course
of history might have been changed, and how ambi-
| tion and envy might have utilized a temporary unpop-
ularity to terminate some splendid career.
~~ As an illustration, take Lincoln in the earlier days
of -his administration. The disastrous defeats that the
Union arms had suffered had been relieved only by
slight successes. Lincoln scarcely had a friend even
in his own cabinet. Seward was willing to take him
under guardianship and run the country for him;
Stanton had written of the ‘‘imbecility”’ of the ad-
ministration; Chase was quite ready to be a candidate
for the presidency himself; the abolitionists were un-
sparing in their criticism; the great organs of public
opinion were hostile to him; and there can be little
doubt that, if a proceeding for recall could have been
had against him at the moment when he was envel-
oped in the clouds of unpopularity, the career of the
greatest of Americans would have been brought to a
disgraceful ending, with results to civilization which
it is melancholy to contemplate.

And then we are to have the recall of judges.

The enforcement of laws by judges subject to popular
184
REPRESENTATIVE LEGISLATION

recall would be likely to be quite in keeping with the
character of the laws, if they had been enacted under
the initiative and referendum. If we are to have all
the other things, the initiative, the referendum, and
the recall of political officers, there would be this
reason for having the judicial recall. It would com-
plete and make exquisite the harmony of this
destructive system. The two fundamental things in
the development of English liberty were the free par-
liament chosen by the people and independent of the
crown, and the independence of the judiciary, which
had held its tenure only at the royal pleasure. The
first great step for the independence of Parliament
was won at Runnymede, and the most signal result
of the Revolution of 1688 was the establishment of
the independence of the judiciary.

Every schoolboy knows the story of the bloody
assizes, the black judicial murders, the gross travesties
of justice which were seen under the old system, when
the judges held their office subject to the favor of the
crown. It was only after the revolution that English
courts became the real theatres of justice, and the
weight of the law and the evidence, and-not the fear
of a master, determined the decree. But the recall of
judges would make them on the instant subject to
another master. The judge, in order to feel secure in
his office, would have to consult the popular omens
rather than the sources of the law. Instead of looking
to the drift of the authorities, he would be likely to
study the direction of the popular winds. If in some

13 185
THE INITIATIVE, REFERENDUM AND RECALL

judicial district a strong labor union or a great cor-
poration should hold the balance of political power, the
courts in that district would be likely to become mere
instruments of oppression.

But if we, the people, are so perfect that we can
do no wrong, even though we are guilty of no investi-
gation, and can with wisdom assume directly to enact
and enforce our laws, what reason is there why there
should be any constitutional restraint upon our action,
and why should we be hampered with statutes or con-
stitutions even of our own making? Why not have
the present entirely free from restraints imposed by
the past? Why not permit us in our omnipotent wis-
dom to decide each case upon its own merits, consid-
ering only the inherent principles of abstract justice,
which in our collective capacity, according to our flat-
terers, we must of course thoroughly understand?

The democracy of Athens at last attained to this
altitude, where the sublimated “composite citizen ”
stood forth unfettered and showed what he could
really do. In the latter days of that city the action of
her people became so direct that in a single abhorrent
decree, disregarding what was left of their constitu-
tion, they ordered six of their generals, among them
the son of Pericles, to be executed, because, although
victorious over their enemies in the days when Athe-
nian victories were few, the success had not been
achieved without cost.

Those who advocate the direct action of our great
democracy might study with a good deal of profit the

186
REPRESENTATIVE LEGISLATION

history of the little state to which I have just been
referring. No more brilliant people ever existed than
the Athenian people. They had a genius for govern-
ment. The common man was able to “think im-
perially.” Their great philosopher, Aristotle, could
well speak of the Athenian as a political animal. They
achieved a development in literature and art which
probably has never since been reached. They could
boast of orators and philosophers to which those of
no other nation can be compared. We marvel when
we consider the surviving proofs of their civilization.
But when they did away with all restraints upon their
direct action in the making and enforcement of laws,
in administering justice and in regulating foreign
affairs, their greatness was soon brought to an end,
and they became the victims of the most odious
tyranny to which any people can be subjected, the
tyranny that results from their own unrestrained and
unbridled action.

It is said that the history of those distant times
can present no useful precedent for our own guidance;
but in what respect is human nature different to-day?
Whatever new stars our telescopes may have discov-
ered, whatever new inventions may have been brought
to light, and whatever advances may have been made
in scientific knowledge, the mainsprings of human
action are substantially the same to-day that they were
in the time of the Greeks. We should be rash, indeed,
to assume that we shall succeed where they failed, and
that we can disregard their experience with impunity.

187
THE INITIATIVE, REFERENDUM AND RECALL

But we are told that the crime of our age is the
inordinate love of wealth, and that to protect ourselves
from its evils we must set aside our existing institu-
tions. But is the love of wealth any new thing? The
greatest of ancient statesmen were accused of the
grossest forms of bribery. Thousands of years ago
the love of money was declared to be the root of all
evil. It is not the fault of an age to be satisfied with
itself. Poets have always been singing of a golden
age, and they have placed it sometimes in the past,
sometimes in the future, but never in the present. We
may go back almost to the oldest of poets, Hesiod, and
we shall find him placing the golden age far back of
his own day, while his own time he pictured as one
stained with plundering, with envy, brawling, and
perjury. Horace in a lively ode sought a poet’s escape,
and called upon the Roman citizens to abandon their
wicked country and set sail for the mythical islands
which Jupiter had set aside when he stained the golden
age with brass and hardened the brazen ages into iron.
And those islands were no more mythical than the
refuge from our own crimes which the inventors of
the initiative, the referendum and the recall have
pointed out to us.

In what respect should we have been better if, dur-
ing the amazing physical development of the last two
generations, we had had direct democratic govern-
ment? It cannot be contended that our legislators did
not represent the people. If they had attempted by
their votes to repress the universal sentiment for indus-

188
REPRESENTATIVE LEGISLATION

trial expansion, they could not have remained in office.
The people of the towns, even of New England, were
found voting bonds as bonuses for the building of rail-
roads and exemptions from taxation in order to secure
manufacturing plants. And in the growing West the
sentiment for empire and expansion was so strong that
cities and towns were bidding against each other in
the offer of gratuities, and if it had not been for the
occasional conservatism of legislatures and for the
issuing of injunctions by judges, who under the recall
would quite likely have been thrown out of office,
our western country would have been covered with
communities which had made themselves bankrupt by
the gratuitous issue of bonds in aid of factories and
railroads; and we should probably not have attained
anything approaching our present development be-
cause of the check that would inevitably have come
through the gross corruption of the system.

The advocates of direct government cite the exam-
ples of Oregon and Switzerland, where they point to
results with an eloquence nowhere else to be found
outside of a mining prospectus. Perhaps I have al-
ready referred sufficiently to Oregon. One must be
easily satisfied who can be convinced by a careful
scrutiny of results in that state, even though the ex-
periment has been tried among her intelligent people.
Switzerland is a small country, scarcely equal in area
to some of our American counties, and a large propor-
tion even of that small area is covered by uninhabit-
able mountains. The population is thrifty and con-

189
THE INITIATIVE, REFERENDUM AND RECALL

servative and largely devoted to the work of caring
for the vast numbers of tourists who annually visit
the country. The conditions as to complexity of indus-
try are radically different from those existing in
America. But while Switzerland is one of the coun-
tries best adapted, as we certainly are one of the least
adapted, to the operation of the initiative and the ref-
erendum, the results there are not such as to justify
their adoption in any other country, if we may credit
the report made to the State Department by our vice
consul at Berne, and presented to the Senate by Mr.
LaFollette on July 13, 1909. The report says:

“ The great questions of centralization, civil status,
laws of marriage and divorce, bankruptcy laws, the
customs tariffs, the railroad purchase, employers’ lia-
bility, factory laws, unity of the conflicting cantonal
civil and criminal laws into a federal code, the mili-
tary organization, the pure-food law, etc., all of
which are things of the past, were congressional
measures. It may safely be said that the initiative
can be of decided and positive value only in dis-
tricts small enough to enable the average citizen to
form a conscientious opinion upon projects of such
local significance as to be well within his practical
knowledge, but, in addition, he must exercise his duty
as he sees it at the polls. With a comparatively small
number of signatures requisite for an initiative meas-
ure, its danger lies in the fact that it may easily be
prostituted by factions, cliques, malcontents, and dem-

190
REPRESENTATIVE LEGISLATION |

agogues, to force upon the people projects of partisan,
freak, or unnecessary legislation.”

As to the referendum, there is no other veto power
in Switzerland. While it is not so intelligently exer-
cised as it would be by an upright executive, yet it has
occasionally proved an important check. The most
striking general result is seen in the relatively small
number of voters who will vote upon laws; and while
statutes have been passed to compel voting, their pro-
visions have simply increased the great number of
blank votes.

The most serious tendency under our present sys-
tem is seen in the multiplication of statutes, which
threatens to destroy liberty and even to engulf our civ-
ilization. But much of this legislative rubbish is the
product of those who are given to exploiting them-
selves as the especial champions of the people or is
the result of the readiness of the legislator to respond
to what he thinks is the popular demand. The mem-
ber who is most disposed to cast a negative vote is
stigmatized as a reactionary. It is not difficult to
place the most immature, visionary, and apparently
popular schemes upon the statute-books of some of the
oldest and, until recently, most conservative states of
the Union. In one historic commonwealth the princi-
pal avocation of the people soon promises to be poli-
tics, assuming that they shall pay due attention to their
political duties, and the next “reform” will not un-
naturally be the passage of a law to pay the voter out

191
THE INITIATIVE, REFERENDUM AND RECALL

of the public treasury for the demand made upon him
in listening, through each recurring summer, to the
wooing of self-constituted candidates—and there can
well be no other candidates; in voting upon their
claims; and finally, in following the campaign con-
ducted by the parties, and in voting in the chief elec-
tion. The essential remedy for checking legislation
would seem to be the education of the people so that
they will present a body of sound and definite opinion
to which the representative may respond. This work
must be done by the people themselves, and it can be
aided greatly: by the newspapers if they will pander
less to sensationalism, indulge less in defamation of
the agencies of government, and seek to become the
veracious chroniclers of their times.

We should not experiment lightly with the funda-
mental principles of our government and trust to our
good fortune to escape danger. It is well to be an
optimist, at least so far as faith is concerned, in the
final triumph of good in the universe; but we should
be careful not to follow too willingly those profes-
sional optimists and political Micawbers who are
always sure, in whatever condition of danger we put
ourselves, that Something will turn up to our advan:
tage. One of the most radical mistakes our nation has
ever made was contributed to in large measure by
well-meaning people who employed eulogiums upon
their own optimism instead of arguments, and de-
nounced as pessimists those who did not cheerily agree
with them. Faith that things will ultimately come out

192
REPRESENTATIVE LEGISLATION

well does not mean that we may recklessly take the
next step.

It should be remembered that civilization has some-
times moved backward for a time, that liberty has been
submerged, and that great and powerful nations have
been brought to naught. Instead of changing our sys-
tem of government because of the existence of evils
which have existed since the beginning of time, and
instead of attempting to seek refuge in a demagogue’s
paradise, our people should be incited to study closely
the problems of government, to set higher standards
for their own conduct, with the result that higher stand-
ards will be followed by their chosen agents; and there
is no evil for which the initiative, the referendum, and
the recall are proposed as a remedy that cannot effect-
ively be dealt with under our republican institutions
without the disintegration, demoralization, and ulti-
mate destruction of regulated liberty and of individual
rights likely to follow from the application of those
reactionary policies, just as they have followed them
when applied upon a large scale in history.
CHAPTER VIII
A DEFENCE OF DIRECT LEGISLATION *

INTELLIGENT and profitable discussion of practical
problems of social or governmental improvement must
include full recognition and due consideration of the
forces controlling human action. Society and govern-
ment are purely organizations of human beings, and
their limitations and possibilities are measured by the
average of individual development. The desideratum
is to give the greatest freedom to beneficial influences,
and to restrain all tendencies toward evil influences.
Successful and permanent government must rest pri-
marily on recognition of the rights of men and the
absolute sovereignty of the people. Upon these prin-
ciples is built the superstructure of our republic. Their
maintenance and perpetuation measure the life of the
republic. These policies, therefore, stand for the
rights and liberties of the people, and for the power
and majesty of the government as against the enemies
of both.

Delegated government exists where the public

 

1 By Senator Jonathan Bourne, Jr. Reprinted, by permission,
from the Atlantic Monthly, January, 1912.
194
A DEFENCE OF DIRECT LEGISLATION

servant owes his nomination and election to known
individuals—political bosses, caucus, convention and
legislative managers, or campaign contributors—thus
establishing personal obligations and accountability,
resulting in service for selfish interests. Popular gov-
ernment exists where the public servant is under ob-
ligation to and solely accountable to the composite
citizen, individual unknown. This necessarily results
in public service for the general welfare, and not for
any selfish interest, the public servant realizing that
otherwise he must be recalled, or will certainly fail of
reélection.

Because society and government should be based
upon a full recognition of the elemental forces con-
trolling human action, I urge the reader’s careful at-
tention to my analysis of these forces. I assert that
either impulse or deduction, followed by conviction,
controls all human action. If the individual be con-
fronted with the necessity for immediate action, then
impulse arising from emotion, such as love, hatred,
anger, sympathy, sentiment, or appetite, is the deter-
mining force. But when the individual has days,
weeks, or months to consider his course, then deduc-
tion, followed by conviction, is the determining force.
Without conviction, there will be no action.

Individual action should be guided by reason, but
is frequently emotional. Community action, as in an
election, must be based upon conviction resulting from
analysis and deduction.

Pr I assert that self-interest is the force controlling

195
THE INITIATIVE, REFERENDUM AND RECALL

every future or postponed action of the individual—
not necessarily always selfish interest, for sometimes
the individual is satisfied with his participation in the
improved general welfare incident to the action. Gen-
erally, however, the individual’s action, when unre-
strained, is governed by his own selfish and personal
interest.

No two people in the world are exactly alike; con-
sequently each individual has a different point of view
or idea as to what constitutes his own particuar per-
sonal or selfish interest. Where individuals act col-
lectively or as a community—as they must under the
initiative, referendum and recall—an infinite number
of different forces are set in motion, most of them
selfish, each struggling for supremacy, but all differ-
ent because of the difference in the personal equations
of the different individuals constituting the commu-
nity. Because of their difference, friction is created—
each different selfish interest attacks the others because
of its difference. No one selfish interest is powerful
enough to overcome all the others; they must wear
each other away until general warfare, according to
the views of the majority acting, is substituted for the
individual selfish interest.

If all the individual units of society were alike,
then selfishness would dominate not only the indi-
vidual but the community action as well. But so long
as no two people are alike, just so long will selfishness
dominate the individual if permitted to act indepen-
dently, while general welfare must control all com-

196
A DEFENCE OF DIRECT LEGISLATION

munity action; for if the individual cannot secure the
gratification of his own selfish desire, then he must
rest satisfied with the improved general welfare in
which he, as one of the units of the community, is a
proportional participant.

This logic applies to a community or a class.
Under the initiative, referendum and recall there can
be no class or community action against the general
welfare of the citizens constituting the zone of action.
The individual, through realization of the impossibil-
ity of securing special legislation for himself and
against the general welfare of the community, soon
ceases his efforts for special privilege and contents
himself with efforts for improved general welfare.
Thus the individual, class and community develop
along lines of general welfare rather than along lines
of selfish interest. :

In further refutation of the unwarranted fear of
hasty or unwise community action, I assert that no in-
dividual will ever vote for or willingly assent to a
change, unless satisfied that the change will directly
benefit him individually, or that the action will bring
improved general welfare to the community, in which
event he is satisfied with proportional participation in-
cident to that improvement. In other words, commu-
nity action determines the average of individual inter-
ests, and secures the greatest good for the greatest
number, which is the desideratum of organized so-
ciety.

Hence I again assert that because of the forces

197
THE INITIATIVE, REFERENDUM AND RECALL

controlling all human action the people cannot under
the initiative enact legislation against general welfare
or in favor of any selfish interest, nor will they select
any public servant who, in their opinion, will be domi-
nated by any selfish interest. Though I grant they
may make a mistake in selecting public servants, I
assert that they will not make the same mistake twice
in the same individual ; that is, under an efficient direct
primary law and corrupt practices act, the people will
not renominate an individual who has failed to serve
faithfully the community he represents.

I have demonstrated that under the initiative and
referendum the people cannot legislate against the gen-
eral welfare, and by the same logic I assert that under
the recall the people will never recall a public servant,
judicial or otherwise, who serves the general welfare.

To elucidate the subject, I shall give a few con-
crete illustrations. Suppose that in a city of twenty-
five thousand inhabitants, where there are four thou-
sand voters, a private corporation owns the water
system and charges exorbitant rates for the service.
The self-interests of probably twenty thousand of the
inhabitants would require municipal ownership of the
water system as a means of improving the service and
reducing the cost, but the self-interests of perhaps five
thousand of the inhabitants require continuation of
private ownership, because these individuals are either
stockholders in the company, employees of the com-
pany, recipients of business patronage from the com-
pany, or political beneficiaries of the system of private

198
A DEFENCE OF DIRECT LEGISLATION

ownership. These few individual self-interests—un-
der the existing system of convention, nomination, and
legislation through a city council—are able, through
control of the press and the manipulation of nomi-
nations and municipal legislation, to prevent or delay
the efforts of the vast majority to change the system
to one of public ownership.

Under the initiative, which would permit direct
legislation on the subject, this question could be sub-
mitted to a vote of all the qualified electors. Ap-
plying the principle I have fully stated in the fore-
going paragraphs, when this question came up for
determination by the voters there would be conflict be-
tween the self-interests of the individuals, but during
the campaign preliminary to the election the subject
would be discussed and considered in all its bearings.
Each individual would make his own deductions as
to his own self-interest and the general welfare of
the community, with the result that selfish interest
would be worn away and the greatest good for the
greatest number secured. Unless a majority of the
voters were convinced that public ownership would be
to their interest, the proposal for public ownership
would be defeated.

I hear opponents of popular government asserting
that the people might be misled and act unwisely on
.a question of this kind, and I reply that they are the
best judges of their own self-interest and have a right
as sovereign citizens to determine the policies of their
government. They will, at least, act honestly, which

199
THE INITIATIVE, REFERENDUM AND RECALL

cannot always be said for city councils influenced by
the power of a public service corporation and pro-
tected by the silence or active defence of a subsidized
press.

At this place in my discussion of the practical
operation of popular government I deem it appro-
priate to explain that this article is designed primarily
as an answer to an article by Representative Samuel
W. McCall. It is my endeavor, however, to make this
article complete in itself, and I shall refer to Mr. Mc-
Call’s article only so far as is necessary in order to
correct a few errors into which he has apparently
fallen.

The failure of Mr. McCall to comprehend the prac-
tical operation of the initiative and referendum is il-
lustrated by his reference to the Columbia River fish-
eries legislation as a case in which the system worked
unsatisfactorily. Evidently without knowing he was
doing so, he cited an unquestionable instance of the
elimination of selfishness and the substitution of gen-
eral welfare. The case referred to was the submission
of two Columbia River fishery bills to the people of
Oregon in 1908. The rival fishing interests—the gill-
net fishermen on the lower river and the fish-wheel
operators on the upper river—had conducted their
work so effectively as to threaten ruin of the industry
by destruction of the fish before they could reach the
natural spawning grounds. Almost every two years
the rival fishing interests had carried their fight to the
state legislature, and the legislature failed to enact

200
A DEFENCE OF DIRECT LEGISLATION

any adequate legislation for the protection of the natu-
ral supply of fish. The state was maintaining hatch-
eries for the artificial propagation of salmon, but, not-
withstanding the maintenance of this work, the fish
supply was steadily diminishing.

Believing that they could promote their own sel-
fish interests and eliminate their rivals by resort to
the initiative, the fish-wheel operators of the upper
river proposed a bill practically prohibiting gill-net
fishing on the lower river, and the gill-net fishermen
proposed a bill prohibiting fish-wheel operations on the
upper river. These two measures, each initiated by
selfish interests, were submitted to a vote of the people.
During the campaign the rival interests presented their
arguments, not only through the publicity pamphlet,
but through the newspapers and by circular letters.
The people of the state gave the matter careful con-
sideration, and, believing that the general welfare re-
quired that the fish themselves be protected from ex-
termination, they adopted both bills.

The people having temporarily terminated fishing
on the Columbia River, the legislature, which had
heretofore failed to do its duty, responded to the
popular will and enacted a law which permits fishing
within reasonable regulations, but provides opportu-
nity for the fish during closed seasons to reach their
natural spawning grounds. I thank Mr. McCall for
calling attention to this instance in which the com-
posite citizen, acting under the initiative, eliminated
selfish interests and substituted general welfare.

14 201
THE INITIATIVE, REFERENDUM AND RECALL

Similar results are accomplished through the ref-
erendum. Selfish interests are frequently able to in-
fluence the individual members of a legislature to such
an extent as to secure enactment of laws granting
special privileges. On the other hand, there have been
innumerable instances in which members of legisla-
tures introduced bills attacking the business interests
of large corporations, for the purpose of compelling
such corporations to pay for the abandonment or de-
feat of such bills. In the one case, selfish interests
were able to buy legislation for their own benefit and
against general welfare; while in the other case cor-
rupt legislators had power to blackmail corporations.
Such transactions are impossible where the refer-
endum is in force, for the people have power to defeat
grants of special privileges against general welfare;
and if a corporation is unjustly attacked by a black-
mailing bill, it can refuse to pay tribute and appeal
directly to the people under the referendum, with full
assurance that the people will not give their approval
to legislation of that character. I believe every ob-
server of legislative controversies involving the gen-
eral welfare of state or city will agree that selfish
interest frequently dominates individual action, where-
as if community action had been possible, the result
would have been advantageous to general welfare.

The initiative affords any citizen who has evolved
a solution of a governmental problem an opportunity
for demonstration of its merits. Under a system of
delegated legislation only, his ideas could ‘be, and quite

202
A DEFENCE OF DIRECT LEGISLATION

likely would be, referred to some committee where
further action would be prevented through the influ-
ence of selfish interest. Where the initiative exists he
can present his ideas in the definite form of a proposed
bill if eight per cent. of the legal voters consider it
worthy of consideration and sign a petition for its
submission to a popular vote.

The system encourages every citizen, however
humble his position, to study the problems of govern-
ment, city and state, and to submit whatever solution
he may evolve for the consideration and approval of
others. The study of the measures and arguments
printed in the publicity pamphlet is of immense edu-
cational value. The system not only encourages the
development of each individual, but tends to elevate
the entire electorate to the plane of those who are
most advanced. How different from the system so
generally in force, which tends to discourage and sup-
press the individual!

Speaking of the initiative and referendum, Mr.
McCall says that, “In effect they propose the substi-
tution of direct for representative government, the
establishment of the direct action of the people, not
merely in selecting their agents, but in framing and
executing their laws.” And again, “It is now pro-
posed to abandon the discovery of modern times”
(government by the people, acting not in person, but
by representatives chosen by themselves).

In view of the clear declaration of our initiative
and referendum amendment, that “ the legislative au-

203 -
THE INITIATIVE, REFERENDUM AND RECALL

thority of the state shall be vested in a legislative as-
sembly, but the people reserve to themselves power to
propose laws and amendments to the constitution, and
to enact or reject the same at the polls,” my inclina-
tion at first was to believe that the writer did not in-
tend to convey the idea that representative government
had been “ abandoned ” and direct government “ sub-
stituted ” therefor; but this liberal construction of his
language became impossible when I read the follow-
ing in the same connection:

“Is it for the interest of the individual members
of our society to have the great mass of us pass upon
the intricate details of legislation, to execute our laws,
and to administer justice between man and man?
That I believe to be in substance the question raised
by the initiative, the referendum and the recall, as
they are now practically applied in at least one of the
states of the Union, the example of which is held up
as a model to the other states.”

I deny unequivocally that in effect or in substance
we in Oregon have abandoned representative govern-
ment, or that the mass of the people pass upon the
intricate details of legislation, execute the laws, or ad-
minister justice between man and man. Let us con-
sider the facts. At the last general election the people
of Oregon voted upon thirty-two measures. Of these
measures, eleven were constitutional amendments, of
which four were adopted and seven rejected. Of the
twenty-one bills submitted to the people only five were
enacted, and sixteen rejected. The result of the direct.

204
A DEFENCE OF DIRECT LEGISLATION

vote was nine measures adopted. The Oregon legis-
lature held a forty-day session last January, consid-
ered seven hundred and twenty-five bills and two hun-
dred and thirty-five resolutions or memorials. Two
hundred and seventy-five of the bills were enacted.
Evidently the extent of substitution of direct legisla-
tion is indicated by the ratio of nine to two hundred
and seventy-five. This is not exactly “ abandonment ”’
of the representative system. Of the relative merits
of the two systems I shall say more later, but leave
that subject for the present in order to continue the
denial of statements quoted above.

I deny that the people of Oregon have executed
the laws except through their duly chosen public
servants. If the statement quoted is intended to apply
to the recall, I reply by saying that there has been no
exercise of the recall against any state, district, or
county officer, though there was talk of recalling a
circuit judge. I have no doubt that administrative
officers have been influenced to some extent by the
fact that they are subject to recall. That is one pur-
pose of the recall. Experience with public officers
from one ocean to the other justifies the belief that
some of them will be influenced by the wishes of the
men to whom they owe their positions and to whom
they are accountable at the end of their terms. Under
the former system of machine domination we learned
that public officers were frequently influenced by the
wishes of the political bosses, regardless of the inter-
ests and wishes of the people. If they were influ-

205
THE INITIATIVE, REFERENDUM AND RECALL

enced by the desires of men who put them into office
under the old system, quite likely they are influenced
by the wishes of the composite citizen, who gives
them their positions under the new. The difference
is that individual, selfish interest wielded the influ-
ence under the old system, while under the new sys-
tem the public officer knows that the people as a
whole desire only a square deal and seek no special
privileges.

I deny that the mass of the people have been called
upon to administer justice between man and man.
Our courts have proceeded with their work as quietly
and as deliberately as ever, though possibly with less
delay. It would be impossible for the people of Ore-
gon to administer justice between man and man in
any case, for, though they have the power to recall a
judge, they have no power to change the decision he
has rendered.

Mr. McCall says that “the prevailing fault of
legislative bodies is political cowardice,’ and that
“the mania of the times is too much legislation and
the tendency to regulate everybody and everything
by artificial enactment.”

Conclusive evidence that has been uncovered in
numerous legislative investigations satisfies the people
of the country that venality as well as cowardice is
one of the faults of legislators. Neither venality nor
cowardice can be charged against the voters of a com-
monwealth except in those instances in which public
affairs are so dominated by political bosses that the

206
A DEFENCE OF DIRECT LEGISLATION

voter has no opportunity of exercising the right of
selection of candidates.

As I have explained on previous occasions, the
wholesale bartering of votes in Adams County, Ohio,
and Danville, Illinois, may be accounted for by the
fact that for years the voters had been accustomed to
mark their ballots for one of two candidates, each
chosen for them by the operators of the political ma-
chine. Having learned by experience that their votes
were ineffective to overcome public evils, they decided
that they might as well profit by the few dollars that
they could secure for their votes, especially since the
character of the public service would not be changed
thereby. Whenever relieved from the domination of
political machines and given opportunity to express
an effective choice, the voters of any state will be
guilty of neither venality nor cowardice, but will go
to the polls and honestly express their opinions upon
the questions submitted, and upon their preference as
between candidates.

As I have already shown, the last Oregon legis-
lature enacted two hundred and seventy-five laws,
while the people under the initiative and referendum
adopted nine measures. If too much legislation con-
stitutes a mania, as Mr. McCall says, then the evil
must be charged to legislatures, and not to the system
of direct legislation.

On the whole, laws enacted by the people are more
carefully prepared, more widely discussed, and more
thoroughly considered than are the acts of a legisla-

207
THE INITIATIVE, REFERENDUM AND RECALL

ture. A bill or proposed constitutional amendment
submitted under the initiative must be filed with the
secretary of state not less than four months before
the election. Prior to that time the measure secures
publicity through the fact that it must be circulated
for the signatures of eight per cent. of the voters.
After the bills have been filed, the promoters and op-
ponents thereof may file arguments for or against.
It is made the duty of the secretary of state to have a
full copy of the title and text of each measure, to-
gether with the arguments for and against, printed in
a pamphlet, a copy of which must be mailed to every
registered voter not less than fifty-five days prior to
election. The title of a bill appears in the publicity
pamphlet exactly as it will appear upon the ballot. In
this way the voter secures the best possible informa-
tion regarding the provisions of the bills, their merits
or defects, the arguments for and against the meas-
ures, and the reason why they should or should not be
enacted.

No such opportunity for the study of measures is
afforded members of a legislature. The Oregon legis-
lature, for instance, is in session only forty days, and
members secure printed copies of the bills introduced
no sooner than the end of the first week. Very fre-
quently the important bills are introduced about the
middle of the session and the members have copies of
these before them for not more than twenty days.
Amendments are frequent, and sometimes these are
made as late as the day on which the bill is passed, so

208
A DEFENCE OF DIRECT LEGISLATION

that legislators frequently vote upon bills without
knowing their real effect.

We had a conclusive demonstration of this in the
Oregon legislature of 1903, when the legislature re-
pealed a statute which allowed every householder a
tax-exemption of household goods to the value of
three hundred dollars. After the legislature ad-
journed, members were astonished to learn that they
had repealed such a law, and, at a special session,
called within a year, this statute was re-enacted by an
overwhelming vote. Not even Mr. McCall will con-
tend that legislation such as this could be ignorantly
passed under the initiative and referendum. Four
months of discussion will, beyond peradventure, dis-
close any serious fault or defect in any proposed
statute submitted under the initiative.

Some honest opponents of direct legislation base
their opposition partly on the fact that a measure sub-
mitted under the initiative is not susceptible of amend-
ment after it has been filed in the office of the secre-
tary of state. Instead of being cause for criticism,
this is one of the strongest reasons for commenda-
tion, for we have learned by experience that one of
the most common methods by which vicious legisla-
tion is secured is to introduce a harmless or a bene-
ficial bill and let it secure a favorable report from a
legislative committee, but with a slight amendment in-
serted therein which entirely changes its character or
effect in some important particular and thereby serves
some selfish interest. When it is known that a bill

209
THE INITIATIVE, REFERENDUM AND RECALL

must be enacted or rejected exactly as drawn, the
framers of the measure will spend weeks and months
in studying the subject and writing the bill in order
to have it free from unsatisfactory features.

In actual practice in Oregon almost every proposed
bill is submitted to a considerable number of men for
criticism and suggestions before its final form is de-
termined upon. The original draft undergoes many
amendments, and these are more carefully considered
than would be the case if the bill were before a legis-
lature. Knowing that the bill will be subjected to the
closest scrutiny of all the people for four months, the
framers of the bill, desiring its passage, naturally en-
deavor to remove every reasonable objection, to make
all its provisions perfectly clear, and especially to re-
move every indication of bad faith. A bill to which
there are many serious objections would stand little
chance of adoption by a popular vote. When thus
drawn and submitted, a bill is in the best possible
form, and there is no possibility of its being made
the instrument for the enactment of what are com-
monly called “ jokers.”

I do not contend that a bill thus drawn will be
perfect, for no human work is perfect, but I do assert
that it will be much better drawn than the great ma-
jority of bills presented to a legislature; and, if
adopted, it will be an improvement upon legislation
theretofore in force on the same subject. The people
of a state will never vote against their own interests,
hence they will never vote to adopt a law unless it

210
A DEFENCE OF DIRECT LEGISLATION

proposes a change for the improvement of the gen-
eral welfare. Previous to the last election, each voter
had fifty-five days in which to consider thirty-two
measures, which, with the arguments for and against,
were laid before him in convenient printed form. This
gave him an average of nearly two days for the con-
sideration of each measure. Assuming that many ot
the bills introduced in one house never appear in the
other, each member of the Oregon legislature was
called upon to consider about five hundred bills in
forty days, or over twelve each day, besides being
compelled to consider many resolutions, motions, and
questions of a political character. I assert that the
individual voters of the state, in the quiet of their
own homes in the evening, could better consider and
decide upon an average of one bill in two days than
the members of the legislature, amid the hurry and
strife and personal feeling incident to a legislative
session, could consider and decide upon an average of
twelve bills a day.

It is frequently asserted that the voter in Oregon
is required to pass upon thirty-two measures in the
few minutes he occupies the booth on election day.
Such is not the case. He has several weeks in which
to determine how he will vote, and merely takes a few
minutes in which to mark his ballot.

In his discussion of the recall, particularly as ap-
plied to judges, Mr. McCall has reiterated a prevail-
ing error as to the practical operation of that feature
of popular government. Evidently he has been mis-

ail
THE INITIATIVE, REFERENDUM AND RECALL

led by accepting as true certain statements contained
in the President’s veto message of the Arizona state-
hood bill. He says, for instance, that, when the recall
is invoked, the man whom the people have elected to
an office is permitted either to resign in five days or
to defend himself in two hundred words upon pro-
ceedings to throw him out in disgrace. This state-
ment is incorrect in two particulars. He may neither
resign nor defend himself, but may quietly continue in
office until his successor has been elected. He has
three alternatives: either to resign, to stand for re-
election, or to continue in office and await passively
the outcome of the recall proceedings. If he chooses
to defend himself, he is not limited to a defense of
two hundred words. The two-hundred-word limit is
merely upon the length of statement he may make to
be printed upon the official ballot. This is merely a
summary of his defense. He is at liberty to make
such other defense before the people as he may de-
sire.

Moreover, the Arizona constitution, to which Mr.
McCall refers, requires that the legislature shall pro-
vide for the payment of the campaign expenses of
any officer attacked under the recall. The man or
men who attack an officer under the recall must pay
the expense of their campaign. The man in office has
not only the advantage of his official record, the pres-
tige of his office, the desire of the American voter
to give every incumbent of an office a square deal,
but he has the further very material advantage of

212
A DEFENCE OF DIRECT LEGISLATION

payment of his campaign expenses out of the public
treasury. Any officer who is not able to make out a
case in his own defense with all these advantages is
very probably a fit subject for recall proceedings.

Mr. McCall further states that it would be a mat-
ter of no difficulty for the defeated candidate to initi-
ate a recall and practically have the election over
again. I challenge the citation of any instance in
which experience has demonstrated that this criticism
is justified. Experience in politics everywhere has
demonstrated that the people admire a “ good loser.”
They have contempt for the man who, after he has
been beaten in a fair fight, refuses to quit.

The recall amendment provides that a recall peti-
tion shall not be circulated against any officer until
he has actually held his office six months, except that
a petition for recall of a member of the legislature
may be filed five days after the legislature meets.
Since a successful candidate takes office two months
after election, and it would ordinarily require a month
to circulate a recall petition, it is plain that there
would be at least nine months for the subsidence of
any personal feeling engendered during a campaign.
Obviously a recall as to members of the legislature
must be operative while the legislature is in session
to be effective.

Thus assured of an opportunity to demonstrate
the character of service he will render, no public serv-
ant need fear recall proceedings growing out of the
campaign for his election, unless his election was se-

213
THE INITIATIVE, REFERENDUM AND RECALL

cured by dishonest means. Of course, in such a case,
a recall might be filed immediately after the expira-
tion of the six months. This would be brought, not
so much by the defeated candidate or his friends, as
by citizens in general, whose right it is to have every
election conducted fairly and honestly.

The assumption that a recall proceeding is an im-
position upon a public officer is not founded on good
reason. An individual has no personal right to public
office, though some few, who under delegated govern-
ment have bought their offices, may think they have.
The office belongs to the people, and they are entitled
to have it filled by whomsoever they please. Every
employer in private life reserves the right to discharge
his employee whenever the service rendered ‘is unsatis-
factory.

The same principle should apply to the electorate
in the employment of a public servant. In fact, this
right would be a matter of understanding and con-
tract where a citizen seeks and accepts a public office
with the knowledge that the recall is one of the laws
of his state.

Mr. McCall asserts that where the recall is in
force “the judge, in order to feel secure in his office,
would have to consult the popular omens rather than
the sources of the law.” Upon the same reasoning,
where the convention system exists with a boss in
control, the judge, in order to feel secure in his office,
would consult the wishes of the boss rather than the
sources of the law. There is this difference in favor

214
A DEFENCE OF DIRECT LEGISLATION

of the influence of the recall—popular influence would
be exerted in behalf of the welfare of the majority,
whereas the influence of the political boss is exerted in
behalf of the interests of a very small minority, which
is generally himself or a campaign contributor.

Some people express the fear that the rights of a
minority will be disregarded by the tyranny of the
majority. They are really most concerned for the
perpetuation of special and unjust privileges for the
small minority. Neither election nor appointment to a
legislative, executive, or judicial office carries coinci-
dent personal or official infallibility.

There is very little weight to argument based upon
allusion to the democracy of Athens, or to the experi-
ence of other ancient nations which made more or less
progress toward a popular form of government. In
the last two thousand years conditions have greatly
changed. Electricity and steam, the telegraph, tele-
phone, railroad, and steamboat have established media
of instantaneous intercommunication of ideas, and
rapid codperation of action in the individual units of
society.

In less than a decade the people of Oregon have
voted upon sixty-four measures. Surely, if the initi-
ative and referendum is a destructive system, as its
enemies allege, there would be abundant evidence
thereof in the recent history of that state; and it
should not be difficult for any citizen to produce con-
clusive and absolutely convincing evidence to that ef-
fect. No one has done so or can do so.

215
THE INITIATIVE, REFERENDUM AND RECALL

Both reason and experience demonstrate the prac-
ticability and importance of the initiative and referen-
dum. My analysis of the forces controlling all human
action, as set forth in the early paragraphs of this ar-
ticle, proves the impossibility of a community voting
against the general welfare. Any person interested
in the subject will observe by a study of results in
Oregon that this has been demonstrated in that state.1

 

1See Appendix, p. 349.
CHAPTER IX

THE PRACTICAL WORKINGS OF THE INITIATIVE AND
REFERENDUM IN OREGON

At the Pittsburgh meeting of the National Munici-
pal League, in 1909, Joseph N. Teal, Esq., of the
Portland (Oregon) bar, presented the following ac-
count of the practical workings of the initiative and
referendum in Oregon:

The exact date at which agitation for the initiative
and referendum began in Oregon is somewhat uncer-
tain. It has been stated that a paper published in Port-
land some time from 1885 to 1888, called The Vidette,
advocated the measure. Its first introduction into the
legislative assembly was in 1893 in the form of a reso-
lution introduced by Senator Vanderburg. Very few
of the members at that time knew what the terms
meant. At the session of 1895 the agitation took the
form of a demand for a constitutional convention and
was defeated by one vote. In 1897 there was no ses-
sion. At the regular session of 1899 the amendment
was passed for submission to the people by a large
majority, and in 1901 it was passed for the second
time and was submitted almost without opposition in
the legislature.

15 217
THE INITIATIVE, REFERENDUM AND RECALL

Formerly under our constitution all proposed
amendments had to be passed by two successive legis-
latures before submission to the people. This amend-
ment was submitted to the people June 2, 1902, and
received 62,024 affirmative votes, 5,668 being cast
against it. At the election held June 6, 1906, it was
applied to local, special and municipal laws. How-
ever, the charter of the city of Portland, which was
prepared by a charter board approved by the people at
the election held in the month of June, 1902, and
passed by the legislature at the session of 1903, con-
tained provisions for the initiative. It has therefore
been in operation in the state for seven years and in
this city for six years. While the time it has been
in operation is hardly long enough to develop all its
advantages and disadvantages, yet its workings have
been sufficiently observed to enable one to form some
conclusion as to its merits and demerits.

Although both powers are generally linked to-
gether, they should be considered separately. One is
a positive force, the other negative. The first stands
for affirmative action, the second is a method devised
for the veto of legislation the people do not approve.
The consequence is that there is very much great-
er opposition to the initiative than to the referen-
dum.

In my opinion, the causes which led to its adoption
are the same that are in evidence throughout the coun-
try generally. The people felt the government was
getting away from them and they desired a more di-

218
IN OREGON

rect control, both in the making of laws and in their
enforcement, than they enjoyed. More potent, how-
ever, than this was the failure of the legislature to
respond to the demand of the people for the enactment
of laws respecting the control of corporations, taxa-
tion and kindred subjects affecting public interests.
Boss-ridden legislatures and councils were the rule
rather than the exception, and the people were tired
of coaxing and pleading to secure desired legislation.
Legislatures and councils were too often more solici-
tous for special than for the public interests, and the
people wanted to secure some effective and direct
method of making their influence felt and their wishes
respected.

The difficulty in securing the enactment of the
Australian ballot law and the registration law are
examples of laws the people wanted, and which were
enacted grudgingly and after long-continued agitation.
Other important measures failed repeatedly to pass.
The combined effect was to create a sentiment (as
shown by the vote) overwhelmingly in favor of the
new procedure. After its adoption tax laws and other
public measures were proposed under it and passed,
the consequence being that the same influences which
prevented the passage of the same character of laws
by the legislature are the deadliest foes of the initiative
and referendum, although this is not to say that there
are not very many good citizen's who are opposed to it
both on principle and in practice. Like all laws or new
methods in government, experience has demonstrated

219
THE INITIATIVE, REFERENDUM AND RECALL

that changes in some particulars are necessary. These
T shall refer to later.

While the powers reserved under the initiative and
referendum have a restraining influence on the legis-
lators and operate as a check on vicious, extravagant
and special legislation, there is also a tendency to cause
the legislator to feel less personal responsibility and to
leave to the people matters on which he should act. It
also provides what seems to some too easy and expe-
ditious a method of submitting amendments to the
constitution. Indeed, some claim that substantially we
have no constitution left in the sense it is generally un-
derstood.

Formerly, it required not only a majority of those
voting at an election, but a proposed amendment was
required to be agreed to by a majority of all the mem-
bers elected to each house in two successive legislative
assemblies before submission to the people. Now an
amendment may be proposed directly by the people
and a majority of those voting on it at any general
election is sufficient to carry the proposition. The
initiative petition for the submission of an amendment
must be filed with the secretary of state not less than
four months before the election at which it is to be
voted upon, and must be submitted at a regular elec-
tion unless otherwise ordered by the legislative assem-
bly. This direct method of amending the constitution
unquestionably imposes very grave responsibilities
upon the electors.

When originally adopted it was generally thought

220
IN OREGON

that only measures of great importance and of limited
number would be submitted under the initiative. In
practice it has been found that such is not the case,
although this statement is subject to some qualifica-
tions. Not unnaturally when it was first adopted quite
a number of laws were proposed and nearly all car-
ried, the enactment of which had been demanded over
and over again by the people, only to be defeated by
the legislature. In other words, it was but the inevita-
ble result of the people having the power to carry out
their will which had been hitherto thwarted by the
failure of the legislators to act at all, or if they did act,
to act adversely. It is also claimed that laws submitted
under the initiative may be, and are sometimes, pre-
pared from a biased or partisan standpoint, and thus
are liable to be unfair, ill-considered, or poorly pre-
pared, and, not being susceptible of amendment, must
be adopted ar rejected as presented. There is truth in
this criticism. At the same time, there is considerable
expense attached to submitting a law, and the people,
if they understand it, will not support an unfair or
one-sided measure. The chief difficulty in this respect,
however, is in getting the facts before the public so
that they understand them. A popular demand crystal-
lized into the form of a law headed by a “catchy”
title is too apt to receive favorable consideration, the
details and imperfections being overlooked in the de-
sire to obtain the ultimate purpose.

Another objection is, that it takes too much of the
time of the people in studying proposed legislation.

221
THE INITIATIVE, REFERENDUM AND RECALL

On the other hand, it might be urged that to compel
people generally to study and understand the condi-
tions under which they are living could scarcely be
called an objection. However, even if not necessary,
it has been found advisable for organizations to issue
statements to voters covering the questions to be sub-
mitted. They generally consist of a short statement
of the measure with the number on the ballot and the
recommendations of the organization on the particu-
lar question. The Taxpayers’ League of this city has
been especially active in this work, but it can be readily
understood that the printing and circulating of these
statements and reports costs considerable money and
with two elections every year, one the city, the other
the state and county, it keeps those interested pretty
busy.

I think the foregoing are the chief objections to
the initiative, except such as are urged by those who
are opposed to it on principle, or by the conservatives
who view with alarm changes in any direction, or by
those who wish to limit rather than enlarge either the
powers or the responsibilities of the people as a whole.
On the other hand, the initiative places in the hands of
the people the power to inaugurate such reforms,
changes of policy or to enact such laws as they may de-
sire or believe to be to their best interests. A num-
ber of changes have been suggested, amongst them
being the following :

1. To provide that a larger number of petitioners
should be required to have a measure submitted than

222
IN OREGON

is now provided by law. Eight per cent. of the legal
voters are now required to propose any measure by
petition.

2. To have initiative measures first submitted to
the legislature with the right to pass upon them or to
amend them, and if amended to submit the alternative
proposition to the people. Such an amendment has
been prepared by friends of the initiative and is now
under public consideration.

3. To limit the number of constitutional amend-
ments or laws that may be submitted to vote at any
one election.

4. To limit the subject matter to a single proposi-
tion in concrete form.

5. It has also been suggested that the initiative
be confined to bills that have been introduced and
failed to pass in the legislature and those that have
been vetoed by the governor.

Except number 2, so far as I am aware, none of
the other suggested amendments has been reduced to
writing or prepared for public discussion.

The referendum is felt to be of great value in oper-
ating as preventive of special, extravagant or other-
wise obnoxious legislation. This power operates as a
strong deterrent against extravagant legislation or
that favorable to special interests. The indiscriminate
granting of franchises, the bartering away of public
rights and the granting of special privileges of all
kinds which have been so prolific of corruption in the
past, would not have been indulged in to the extent

223
THE INITIATIVE, REFERENDUM AND RECALL

they have, had the people always reserved this power.
There is but little criticism of the referendum. About
the only change suggested is to provide for a larger
number of petitioners.

It could hardly be said that the people have not
voted intelligently upon measures that have been sub-
mitted for their consideration. Moreover, nearly all
the laws passed by the people, though possibly differ-
ing in language or construction, have been rejected by
the legislature. The following list is illustrative of
measures submitted and votes cast thereon:

1906 Yes No
Houial stiffrav@s sci wou ie deve tee eeeedatceeaes 36,928 46,971
To amend local option law.................... 35,397 45,144
To purchase a private toll road................ 31,525 44,525
For initiative and referendum on local, special and
municipal laws..........-. 00. c cece aes 47,778 16,735
Prohibiting free passes (no enacting clause)...... 57,281 16,779

Requiring sleeping car, refrigerator car, and oil

companies to pay annual license upon gross

CAPNINGS 250) bi gos aaa eave ws dd eed as Meno da aces 69,635 6,440
Requiring express, telegraph and telephone com-

panies to pay annual license upon gross

CAMMINGS iy cde ewes sanesas pcan eae 70,872 6,360

It will be noted that the act prohibiting free passes
had no enacting clause and in consequence failed to
become a law. The act to regulate transportation and
commerce, etc., was passed at the legislative session
of 1907. Certain provisions of this act, in effect, pro-
hibited the giving of free transportation.
Notwithstanding the vote of the people but recently
cast upon the question, the legislature at the same ses-
ston passed an act requiring the railroads to grant free
224
IN OREGON

transportation to state and county officials as a consid-
eration precedent to acquiring land for corporate pur-
poses by the exercise of eminent domain. A referen-
dum was called upon this act, and at the election of
1908 the law was defeated by a vote of 59,406 to
28,856. This exemplifies the use to which the referen-
dum may be put and is an excellent illustration why it
is extremely unlikely that it will be repealed.

A referendum was also called on an appropriation
made for the state university. The appropriation was
sustained by a vote of 44,115 to 40,535. This refer-
endum is occasionally referred to as an illustration of
its dangers. Personally, I do not view it in that way,
as I think the discussion that followed, and the better
-. understanding the people in the end had of the subject,
did good rather than harm. I might add that the large
negative vote does not really represent the feelings of
our people toward the state university. A number ot
local conditions and issues swelled this vote, and I
think I am safe in saying that the people of the state
generally take a justifiable pride in this institution,
which, I am glad to say, is growing in strength and
influence all the time.

Among the measures submitted in 1908, and de-
feated, were the following:

Increasing the compensation of members of the
legislature to $400 for a regular session, and ten dol-
lars per day for each extra session, instead of three
dollars per day and mileage;

An amendment increasing the number of judges of

225
THE INITIATIVE, REFERENDUM AND RECALL

the supreme court, and changing the jurisdiction of
certain other courts;

An act appropriating $25,000 annually for four
years for purchasing grounds and building armories
for the use of the Oregon National Guard;

Equal suffrage amendment ;

Giving cities and towns within their corporate
limits additional and exclusive power to license and
control or prohibit theatres, race tracks, and the sale
of liquor, etc. This proposal was considered to be
something in the nature of a trick to avoid the effect of
the local option law, and received 39,442 affirmative
and 52,346 negative votes;

The single tax amendment was defeated by a vote
of 60,871 to 32,066.

The following measures were carried:

Permitting the location of state institutions, else-
where than at the seat of government, by act of legis-
lature and vote of the people;

Changing the time of holding the regular general
biennial election from the first Monday in June to the
Tuesday after the first Monday in November.

Two laws prohibiting fishing for salmon, etc., were
both passed; one was known as the “ Up River Bill,”
the other as the ‘“ Down River Bill.” The effect of
the passage of both laws was to prohibit the taking of
salmon at all, although such was not the intention of
the proposers. Each only wanted to restrain its rival.
While on its face it would indicate that the vote cast
is evidence of the confusion that may result from the

226
IN OREGON

use of the initiative, yet, if the subject were understood
as we understand it here, the result is not surprising.
Moreover, it is not uncommon to find contradictory
laws as well as acts having irreconcilable provisions
passed by the legislature.

In the report of the Oregon Conservation Commis-
sion of 1908, the committee who prepared the paper
on the salmon industry in connection with this vote,
said :

“There is some antagonism among the operators
of any kind of gear against any other. Between the
gill-netters of the lower and the wheelmen of the upper
river, this rises to open hostility. Opposing delega-
tions have met before the legislature for many years
and each party has succeeded in blocking legislation
proposed by the others. At last election (in June,
1908), each party had its bill, proposed under the
initiative, each legislating the other’s method of de-
struction and preserving its own. The electors, in an
excess of disgust, tinged with sardonic humor, passed
both bills by different but decisive majorities. The
laws thus passed, taken together, practically prohibit
fishing by either method so far as the legislation of this

_state alone was competent to do so.”

The recall was adopted by a decisive majority.

A law instructing the members of the legislature to
vote for and elect the candidate for United States sen-
ator who receives the highest number of votes at the
general election, was adopted at the polls by a vote of
69,668 to 21,162.

2 227
THE INITIATIVE, REFERENDUM AND RECALL

An act authorizing the legislature to provide for
proportionate representation passed by a large vote.

The “Corrupt Practices” act also passed by a
heavy majority. This act is very long, and, while its
object is good, it is exceedingly complicated, and it is
doubtful if some of its provisions can or should be
enforced. There is no question, however, but that its
operation was noticeable at elections following its
adoption, and it certainly had a marked effect for the
better.

A constitutional amendment was also passed pro-
viding that no person can be charged in the circuit
court with a commission of a crime or misdemeanor
except upon indictment found by a grand jury. Prior
to the passage of this act, the district attorney could,
upon his own investigation, file an information which
in effect was an indictment.

An analysis of the measures submitted and the vote
of the people thereon would indicate that there is noth-
ing in the vote on these measures which would justify
condemnation of the law or fear of its consequences.

At the city election held in June this year there
were thirty-five measures submitted to the people. As
the number of measures submitted at this election is
often used as a “ horrible example ” of what the initia-
tive and referendum may lead to, simple justice de-
mands that the facts be stated. There were thirty-five
questions submitted. Of these twenty-five were pro-
posed amendments to the charter, which can be
changed only by a vote of the people. Of these three

228
IN OREGON

were submitted by a charter board appointed for the
purpose of submitting a new charter or amendments
to the existing charter; twenty-two were submitted by
the council direct, or upon the advice of a committee
of seven citizens appointed to propose changes; and
none by petition through the initiative.

Nine ordinances were submitted. Of these two
were submitted by the council and seven by the initia-
tive petition. One referendum was called against an
ordinance passed by the council. It will thus be seen
that the people, through the initiative and referendum,
were directly responsible for eight of the measures
submitted. However, it is but fair to say that a num-
ber of the others should have, and probably would
have, been submitted had not the council acted.

Many of the charter amendments were of slight
importance, but as before stated, as the charter can
only be changed by a vote of the people, they had to be
submitted. Others were of great importance. A com-
mission form of government was defeated by a vote
of 10,770 to 4,903. A municipal electric light plant
was proposed. It was defeated by 9,684 to 6,039.
Proposed ordinances granting to a Gothenburg Asso-
ciation the exclusive right to sell spirituous liquors in
the city of Portland and a rather stringent excise or-
dinance were both badly defeated. An amendment
requiring franchise holders to keep accessible accounts
and report to the city auditor carried by a vote of
10,302 in its favor and 4,444 against it. Twenty-seven
of its recommendations were adopted, and eight were

229
“.

THE INITIATIVE, REFERENDUM AND RECALL

not. Of the eight, two at least were of no particular
importance.

In my opinion, a proposition in this state to repeal
the initiative and referendum, notwithstanding certain
defects and disadvantages, would meet with defeat.
In the future defects may develop that will provoke a
repeal, but this I doubt. On the contrary, I think it
much more probable that the defects will be remedied,
and the axe will not be laid at the root of the tree. It
is true that the initiative and referendum is a radical
departure from our former practices and imposes a
grave responsibility upon the people. Thus far, on
the whole, they have fully met this burden, and in my
opinion it has worked for good; and nothing is of
more importance in a government such as ours than to
place responsibility directly upon the people. It is my
belief that they can be trusted to act upon measures
that may be submitted to them, and that as a whole
they will act fairly and justly if they understand them.
They may be deceived, but I do not believe any con-
siderable number of people will knowingly be unjust
or unfair, or act otherwise than as they believe to
be to the interest of the community.

I do not desire to make any comparisons between
laws passed by the legislature and those passed by the
people direct, but the comparison, if made, would not
be unfavorable to those passed through the initiative.
While I favor and still favor the initiative and refer-
endum, I am not a partisan or special pleader for it,
and if I believed or was convinced that it worked for

230
IN OREGON

harm rather than for good, I would say so, and urge
its repeal. At times measures are suggested and action
taken thereon that create some doubt as to the wisdom
of the procedure, but when one thinks of what went
on under the old system, and how indifferent and
worse than indifferent legislatures have been and are
both as to the rights and demands of the people, one
feels that a mistake now and then does not justify a
wholesale condemnation of the new system. It is
urged that the people without this law have the power
to elect only honest and qualified men to office, and
therefore there is no occasion to inaugurate what ap-
pears to some people to be a revolutionary programme.
This may be true, but to have a concurrent remedy
can do no harm. Let the people elect honest men, let
them also retain the power reserved in the initiative
and referendum. Its benefits will then be not in its
use, but rather in its potentiality.

I have been asked to discuss the effectiveness of the
initiative and referendum as instruments for securing
a democratic government; but I am sure that any
academic discussion of this question would be unprofit-
able. There are two lines of thought: one holding
that it is destructive of, the other that it is an aid of a
democratic form of government. It is asserted that
under it a state does not enjoy the character of govern-
ment guaranteed by the constitution of the United
States, and a case involving this point is now pending
in the supreme court of the United States on appeal
from the supreme court of Oregon. However, thus

231
THE INITIATIVE, REFERENDUM AND RECALL

far the courts have held, including the supreme court
of this state, that the initiative and referendum as
adopted in this state are not contrary to the provisions
of the constitution of the United States guaranteeing
a republican form of government.

It is also asserted that the only method by which
our character of government can be maintained is
through representatives chosen by the people. Very
earnest and able men support both views, but speaking
from our experience thus far, it is my opinion that the
initiative and referendum tend to secure more demo-
cratic government, if by that term is meant government
by the people and for the people, than does the purely
representative form. A number of laws and amend-
ments to the constitution have been approved by the
people when proposed by initiative petition after the
same measures had been rejected by the legislature,
and are some evidence of the truth of this statement.
CHAPTER X
A YEAR OF THE PEOPLE’S RULE IN OREGON (1910)?

THE past year has been one of great political ac-
tivity in Oregon. Observers at a distance may have
entertained the notion that, with the securing of the
initiative, the referendum and the recall, not to speak
of the direct primary and a genuinely popular election
of senators, all pressing problems had been solved,
and that these devices of the new institutional democ-
racy would now be subjected to years of quiet testing.
Little did they understand the spirit of the Oregon
leaders. The men who had championed direct legisla-
tion and kindred institutions in that state were by no
means disposed to rest content. The triumphs they
had secured had come singly, in laws neither entirely
consistent with each other nor with other parts of the
governmental machinery as yet untouched. Accord-
ingly, fifteen months in advance of the general election
of 1910, they set about devising a system whereby the
conduct of state and county government might “ be
made as efficient and economical as the management

 

1By Professor George H. Haynes. Reprinted from Political
Science Quarterly, Vol. XXVI, No. 1.

16 233
THE INITIATIVE, REFERENDUM AND RECALL

by citizens of their private business.” Such was the
ambitious aspiration which prefaced a series of pro-
posals, printed in an edition of 7,500 copies and dis-
tributed in midsummer, 1909, accompanied by a letter
of explanation signed by eighteen men whose names
are familiar as sponsors of the direct legislation meas-
ures of the past decade. These documents were sent
to thousands of representative voters of Oregon and
also to interested correspondents in other and distant
states, for the purpose of obtaining opinions regarding
the wisdom of the scheme. The proposals thus cir-
culated were: to submit, by initiative petition, at the
election in November, 1910, a bill for the publication
of an “Official Gazette,” and four constitutional
amendments, the first of which aimed to systematize
the exercise of the legislative power within the state;
the second, to centralize administrative responsibility
on the models of the business corporation and of the
federal executive ; the third, to secure a similar centrali-
zation of responsibility in county government; and
the fourth, to secure certain reforms in the state judi-
clary. Throughout them all, the avowed purpose was
to “maintain the people’s direct and supreme power,
by the initiative, referendum and recall, to make laws
and discharge the public officers as well as elect them ” ;
and the intention was announced of forming a “ Peo-
ple’s Progressive Government League” of four or five
hundred citizens, to present such measures as might be
agreed upon.

In January, 1910, under the same auspices, a sec-

234
YEAR OF PEOPLE’S RULE IN OREGON

ond pamphlet was issued, in which the proposals be-
fore advanced were restated and modified in accordance
with the criticisms and suggestions which they had
elicited. Some clauses were cut out; some new fea-
tures were stressed; and much space was devoted to
argument upholding the theory and practice of ‘“ peo-
ple’s rule.” Some months later there were circulated,
for signatures, four initiative petitions, in the elaborate
form prescribed by law, prepared by the “ People’s
Power League.” The two most radical projects—
those designed to centralize administration in the state
and in the county——were omitted, for signs of reac-
tionary revolt were multiplying, and it was deemed
wise to concentrate the campaign.

The first place was given to a bill te extend the
Direct Primary Nominating Elections Law so as to
include presidential campaigns and nominations.’ This
measure provided that in the year of a presidential
campaign, on the forty-fifth day before the first Mon-
day in June, there should be held the Oregon primary
nominating election, at which every voter should have
the opportunity to “vote his preference . . . for
his choice for one person to be the candidate of his
political party for president, and one person to be the
candidate of his political party for vice-president of
the United States,” either by writing the names of
such persons in blank spaces or by making a cross
before the printed names of the persons of his choice.

 

1 Adopted by the people, infra, p. 272.
235
THE INITIATIVE, REFERENDUM AND RECALL

At this election votes might be cast also for delegates
to the national nominating convention and for presi-
dential electors, by a method intended to secure pro-
portional representation. The expenses of the men
thus selected as delegates to the national conventions
were to be paid from the state treasury, up to the limit
of $200 for each delegate. The proposed law accorded
to each person regularly nominated for president or
vice-president of the United States by a political party
recognized as such by the laws of Oregon, the use,
gratis, of four pages in the state campaign book,
wherein he, or his duly accredited representatives or
supporters, might set forth the reasons why he should
be elected. Equal spaces were made available to per-
sons nominated to be delegates to a national conven-
tion or presidential electors, and to any qualified elector
of a political party who might favor or oppose the
nomination of any person of his own political party as
its candidate for president or vice-president; but each
of these unprivileged characters was to pay at the rate
of $100 a page for this “leave to print ’’—a regula-
tion which might with excellent effect be applied to
post-mortem issues of the Congressional Record.

A second constitutional amendment put forward
by the People’s Power League proposed certain
changes in the state judiciary. It provided that the
judges of all courts should be elected for a term of
six years; allowed the supreme court in its discretion to

 

1 Adopted by the people, infra, p. 273.
236
YEAR OF PEOPLE’S RULE IN OREGON

take original jurisdiction in mandamus, quo warranto
and habeas corpus proceedings; and introduced the
provision that “in civil cases three-fourths of the jury
may render a verdict.” It prohibited re-trial of any
case, “unless the court can affirmatively say there is
no evidence to support the verdict.” In case of an
appeal, it provided for affirmance of judgment not-
withstanding any error committed during the trial, pro-
vided the supreme court was of the opinion that the
judgment was such as should have been rendered; and
it directed that, if the supreme court should be of the
opinion that it could determine what judgment should
have been entered in the court below, it should enter
such judgment. As originally proposed, this measure
provided that “only such opinions of the supreme
court shall be printed as decide new questions of law,
or the meaning and construction of the statutes and
the constitution of Oregon and of the United States,
or that reverse former decisions of the court.” But
that provision was pruned down to the following:
“* At the close of each term, the judges shall file with
the secretary of state concise written statements of the
decisions made at that term.” This amendment left
unchanged an unusual feature of the Oregon constitu-
tion: “ Public officers shall not be impeached; but in-
competency, corruption, malfeasance or delinquency in
office may be tried in the same manner as criminal of-
fenses, and judgment may be given of dismissal from
office and such further punishment as may have been
prescribed by law.”

237
THE INITIATIVE; REFERENDUM AND RECALL

A project more characteristic of the “ people’s
rule”? movement was a further measure, which was
proposed by initiative petition, providing for the es-
tablishment of a board of three “ people’s inspectors
of government,” ! to be elected for a term of two years
by a method intended to secure proportional represen-
tation. These censors were to devote their time ex-
clusively to the performance of their official duties.
They were “to have at least one of their number pres-
ent at all times at every session of each house of the
legislative assembly, and to be watchful for any defeet
or imperfection in the state and local systems of gov-
ernment.”’ Upon demand of one member, the board
was required to investigate and report on the man-
agement of any public office or any institution sup-
ported wholly or in part by public funds; and wide
powers were given to the board in order to enable it
to ascertain facts pertinent to its inquiry. The re-
sults of such investigation were to be published in
the Oregon Official Gazette, a publication which was
to be issued at least every two months, and was to
be mailed at public expense to “ every head of a family
who is a registered voter, and every registered voter
who is not a member of a family.” To others, the
subscription price was fixed at one dollar a year. The
proposed law required the board to publish in the
Gazette, without unnecessary delay, not only their
own reports but a great variety of specified documents

 

1 Rejected by the people, infra, p. 271.
238
YEAR OF PEOPLE’S RULE IN OREGON

relative to government, e. g. “all publications that
may be required by law to be mailed to every regis-
tered voter.” Every department of the state or of
any county or municipal government therein was to be
subjected to the scrutiny of the inspectors. The pro-
posed law insisted that such investigation and publica-
tion should be “ solely for the information of the peo-
ple without motive or desire for personal or partisan
advantage,” and forbade the publishing of ‘“‘ any mali-
cious, libelous or personally abusive communication ” ;
it was, however, specifically required that they should
publish “any criticisms or complaints, not exceeding
two hundred words each, of their own official acts.”
The law provided that these inspectors should be
elected biennially, beginning in 1912. For service be-
fore that date, a temporary board was to be appointed
by the governor. He was to call for three recom-
mendations of nominees from each of the following
bodies: the executive committee of the State Grange,
the executive committee of the Oregon State Federa-
tion of Labor and an assembly of the presidents of the
boards of trade and commercial organizations of the
state; and he was to name as a member of this tempo-
rary board one of the three nominees submitted by
each of these bodies. If the framers of the bill put
this forward as a model for future boards, it is of in-

 

1 If the Oregon Campaign Book could thus be brought out as an
issue of an official gazette, it would be entitled to second class postal
rates. On the last issue, that would have involved a saving to the
state treasury of about $2,500.

239
THE INITIATIVE, REFERENDUM AND RECALL

terest to note the proportionate influence here allotted
to different elements in the population in the forming
and executing of public opinion.

By some accident no specific salary for the inspec-
tors was mentioned, although it was expressly declared
that the board “ shall not apply to the legislative as-
sembly for any appropriation. It is intended that these
inspectors shall be independent of all other officers and
powers, except the people of Oregon.” The sum of
not more than $15,000 was to be expended by them
for expert accountants and other assistants in making
investigations, but the total expense incurred for sala-
ries and other charges of the board and for the pub-
lication of the official Gazette was not to exceed the
sum of one dollar for each registered voter in Oregon.
In the original proposal and in the revised proposal
of January, I910, was a provision giving the inspec-
tors a certain discretion in determining what matter
should be admitted to the Gazette free of charge, viz.:
“Tf any citizen or officer shall offer a communication
which the board does not consider of sufficient inter-
est for publication, he may pay at reasonable column
rates, to be fixed by the board, for the publication of
not exceeding three columns in any issue.” This pro-
vision did not appear in the measure finally submitted,
in which the inspectors were apparently required to
insert any communication which a citizen might sub-
mit, unless they could exclude it on the ground that it
was “malicious, libelous or personally abusive,’ - or,
possibly, on the ground that, after publishing the official

240
YEAR OF PEOPLE’S RULE IN OREGON

material mentioned or indicated in the law, they would
not be able to print the citizen’s contribution without
exceeding the limitation imposed upon their total ex-
penditures.

By far the most elaborate and important, however,
of the measures put forward by the People’s Power
League was one which contemplated a systematic re-
constitution of the legislative power and which also
was proposed by initiative petition.1 By piecemeal and
unrelated acts of legislation, Oregon—followed by
quite a number of other American states—has patched
the new cloth of the initiative and referendum upon
the old garment of its constitution. Here at last was
a project which, in the opinion of its advocates (who
have been the successful champions of direct legisla-
tion), would establish logical and effective relations
between the law-making work of the people at the polls
and that of the representative legislature.

At the outset, this proposed constitutional amend-
ment formulated the powers reserved by the people to
themselves, namely, the initiative and the referendum.
Initiative measures should be put before the people on
demand of not more than eight per cent. or, at the
most, 50,000 of the legal voters, and should be filed
with the secretary of state at least four months before
the election at which they were to be voted on. The
referendum must be applied to any constitutional
amendment, and might be ordered upon any act of

 

1 Rejected by the people imfra p. 272.
241
THE INITIATIVE, REFERENDUM AND RECALL

the legislature by five per cent. or, at the most, by
not more than 30,000 of the legal voters. It might be
applied to individual items of acts of the legislature;
and any increase in appropriations for the maintenance
of the state government or of the institutions sup-
ported by state funds was to be subject thereto, In
order that the referendum might have full scope, it was
provided that, except in cases of emergency, no act of
the legislature should take effect until ninety days from
the end of the session at which it was passed. Inas-
much, however, as three months’ delay might at times
prove disastrous, it was provided that any measure
(except one creating or abolishing some office or
changing the salary, term or duties of some officer )
should go into effect immediately upon its passage,
provided three-fourths of all the members elected to
each house “ shall vote, on a separate roll-call, in favor
of the measure going into instant operation because
it is necessary for the immediate preservation of the
public peace, health and safety.” Even such a measure
might be annulled by a subsequent referendum, but it
was to remain in force until the adverse vote should
be declared. It was further provided that no measure
approved by vote of the people could be repealed or
amended by the legislative assembly, except by three-
fourths vote of all the members elected thereto. Pro-
vision was also made for the use of the initiative and
referendum under similar conditions in municipal af-
fairs.

The make-up and powers of the representative leg-

242
YEAR OF PEOPLE’S RULE IN OREGON

islature were next set forth. The numbers were to
remain unchanged: thirty members of the senate and
sixty of the house. These were to be chosen from
such districts, composed of contiguous territory, as
should be provided by law; but residence within the
district was not required. On the one hand, the mem-
ber’s position was substantially strengthened by in-
creasing the term of senators from four to six years
and that of representatives from two to six years; but
this was offset by the recall, which, on demand of
twenty-five per cent. of the voters, might be invoked
not only against an individual member but against the
senate or the house or the entire legislative assembly.
Recall petitions must state in not more than two hun-
dred words the reasons for such action. The filing of
a recall petition requiring a general election—in other
words, the formal initiation of a measure to “turn
all the rascals out ’—-was to operate as “a complete
suspension of all thé power granted by the people of
Oregon to the legislative assembly,” until the returns
should be determined.

The members of both houses of the legislature
were to be elected by a novel system of proportional
representation, the intent being that any one-sixtieth
of all the voters of the state, voting for one person
for representative, should elect him and that any one-
thirtieth should be enabled to elect their candidate for
the senate. The nomination was to be by districts,
but the election by the voters of the state at large.
Each candidate’s name, whether for the senate or for

243
THE INITIATIVE, REFERENDUM AND RECALL

the house, was to be printed on the ballot only in
the district in which he should be nominated; but any
legal voter in any other district might vote for him
by writing his name upon the ballot or by using a
sticker. Each voter, however, was to vote for only
one candidate for senator and one for representative.
No candidate for nomination was to be permitted to
circulate his petition or pay for its circulation outside
of the nominating district in which he resided. At
the general election, each candidate for the legislature
was to be entitled to have printed on the official ballot
against his name his “ platformette ”—a statement in
not more than twelve words of his political faith or of
his pledges to the people.

In counting the vote, the total number of votes
cast for senators was to be divided by thirty and that
cast for representatives by sixty, the resultant numbers
fixing the “quota of election” for each. Then the
whole number of votes received by all the candidates
of each party was to be divided by this quota of elec-
tion; the quotient for each party was to indicate the
number of representatives’ (or senators’) seats to
which that party was to be entitled; and that number
of party candidates who should have received, each
for himself, the full quota or nearest to the full quota
of votes should be thereby elected. Any independent
candidate who should receive for himself a quota of
votes, or a number greater than the highest remainder
of any party, should be thereby elected.

It is evident that the Swiss free-list system had re-

244
YEAR OF PEOPLE’S RULE IN OREGON

ceived careful study. It was assumed that in most
districts candidates of the more prominent parties
would be put forward, but that a single-taxer or
socialist, if of strongly marked personality or power
of leadership, might so enlist the loyalty of supporters
all over the state that they would substitute his name
for those of the candidates nominated in their own dis-
tricts. In making state-wide the constituency from
which representatives were to be chosen, proportional
representation would have been subjected to a severe
strain. In the writer’s opinion, the chances of its sat-
isfactory working would be greatly increased if it
were applied to districts electing not more than from
five to ten members.

Vacancies, except those created by the recall, were
to be filled by “seating the qualified candidate from
the same party as that of the retiring officer who re-
ceived for himself nearer to the quota of votes than
any other candidate of his party who was not elected.”
This procedure is open to obvious and serious objec-
tion, particularly in view of the proposed term of six
years—a term longer than that accorded to a legislator
in any other American state. Party complexion may
undergo great changes in such a period. There is lit-
tle assurance that a Democrat who narrowly escaped
election in 1892 would, by virtue of that fact, have
beer an acceptable Democratic representative in 1897.
Republicans of the vintage of 1897 or of 1907 might
need to be re-certified in 1900 or in 1910. Another
defect lay upon the surface: district nomination was

245
THE INITIATIVE, REFERENDUM AND RECALL

required although district residence was not. Doubt-
less, in nine cases out of ten, the representative would
be a resident of his own district. But in case such a
representative should die or resign during the course
of his six years’ term, his place would be filled auto-
matically by the man of his party name who, possibly
five years earlier and necessarily in another district,
happened to have escaped election by the narrowest
margin. In short, both this form of proportional rep-
resentation and this method of filling vacancies are at
fault in over-emphasizing party lines. In state rela-
tions national party lines have only a secondary and
minor justification; and yet, under this plan, the party
label was to determine who should fill a vacancy long
years after the label’s significance might have been
utterly lost.

No distinction was made in the qualifications for
membership in the two houses; the candidate must be
a citizen of the United States, at least twenty-one
years of age, and a resident of the state for at least
five years before his election. It was proposed, how-
ever, to make a substantial increase in the compensa-
tion of the legislators. Under the present law it is
not more than three dollars a day, with the further
stipulation that the entire per diem allowance shall not
exceed $120 in any one regular biennial session. Under
the proposed measure each member was to receive
an annual salary of $350, together with a mileage al-
lowance. Each house was to choose its own officers
and standing committees; but the presiding officers,

246
YEAR OF PEOPLE’S RULE IN OREGON

though elected by their respective houses, “ shall not
be members of the legislative assembly, nor hold any
other office at the same time. They shall not appoint
committees, and shall have no voice or vote on legis-
lative business.”’ Evidently ‘‘ Cannonism” was not ap-
proved by the framers of this project. Two-thirds of
each house was the exceptionally large quorum re-
quired to do business; in case either house should fail
to effect an organization within five. days after such
quorum should be in attendance, its members were to
receive no compensation from the end of the said five
days until an organization should have been effected.
This, however, would not prevent the recurrence of
the experience of 1897, when throughout the time ap-
pointed for the session the legislature failed to effect
an organization because the requisite quorum never
appeared.

A majority of all the members elected to each
house was to be necessary to pass any bill. The yeas
and nays must be entered at the request of any two
members on any question except a motion to adjourn
—on which the demand must be supported by onc-
tenth of those present. Strangely out of date and
empty of significance in this radical measure sounds
the familiar restriction that bills for raising revenue
should originate in the lower house. There was a
formidable list of acts excluded from the competence
of the legislative assembly, with no less than sixteen
items, including the enactment of “ any local or general
law extending or granting the power of eminent do-

247
THE INITIATIVE, REFERENDUM AND RECALL

main to private corporations.’ Painstaking effort was
put forth to devise checks for the abuses most prev-
alent in legislative assemblies. To prevent undue
haste, it was provided that bills introduced after the
twentieth day of any session should not be passed at
that session, unless as emergency measures; and that
none but an emergency measure should be passed until
it had been printed and in the possession of each
house, in its final form, for at least five days. Nor was
any measure to be altered or amended on its passage
through either house so as to change its original pur-
pose. Issue-dodging and the shirking of legislative
duties were to be discouraged by the deduction of ten
dollars from the salary of a member for each failure
to vote on a roll-call, unless such member were excused
by a yea and nay vote of a majority of all the mem-
bers of his house! An attempt was made to combat
the evils of secrecy by the requirement that the doors
of each house and of all committees should be kept
open, “except only in such cases as in the opinion of
either house require secrecy, but in every such case
the yeas and nays shall be entered on the journal.”
Committees were required to be “liberal in allowing
public hearings on measures; the chairman of every
committee shall notify, in writing, all persons who ad-

 

1 Those who have found American patriotism personified in the
Hon. William R. Hearst may be interested to compute how such a
rule as this would have worked had it been applied to his recent ser-
vice in Congress. It was reported that during the 71 days of the
short session of the 59th Congress he was recorded as absent 69 days,

248
YEAR OF PEOPLE’S RULE IN OREGON

vise the committee of their desire to be heard on any
measure in its charge, of the time of such hearing.”

These Oregon reformers apparently regard log-
rolling as the most noxious of legislative distempers,
and as a specific against it they devised the following
oath, to be taken by every member:

“I do further affirm and promise the voters of the
state of Oregon, that during my term of office, in act-
ing or voting as such officer upon any measure, I will
always vote solely on my judgment that the bill or reso-
lution will or will not advance the general welfare, and
without reference to the vote, action or caucus of mem-
bers on that or any other measure, and without any
understanding (except my public pledges to the people
or instructions from the people) in any form with any
member or person that I will aid or be friendly to a
measure in which he is interested because he will or
may be inclined to aid one in which I am interested.”

As a crowning safeguard, it was provided that seats
and desks should be provided on the floor of each
house for the “ people’s inspectors of government,” if
such officers should be created by law.

Early in the spring of 1910 it became evident that
the election in November would be hotly contested.
The cause of the uprising was dissatisfaction with the
working of the “ Oregon system ”—in particular, with
the fetter imposed by “statement No. 1” upon can-
didates for the legislature in pledging them to vote
for the people’s choice for United States senator. Such
a requirement is of course obnoxious to the machine

17 249
THE INITIATIVE, REFERENDUM AND RECALL

politicians; but it must be confessed that the “ Oregon
system” has shown that it may yield anomalous re-
sults, little calculated to give satisfaction to men of
quite a different type—men who are firm believers in
party and in party responsibility. Under normal con-
ditions, Oregon is rated as a Republican state by a ma-
jority of about 25,000, Yet at the present time the
state is represented in the Senate by one man who is
said to have shown some fickleness in his party alle-
giance and by another who is a Democrat. It is no
aspersion upon Senator Chamberlain’s character or
career to say—what is freely acknowledged—that his
endorsement in the general election (which bound
members of the legislature who had signed statement
No. 1) was made possible only because the Republican
party in the state was rent by faction. Some Repub-
licans voted for Chamberlain because they preferred
him to any leader of the opposing wing of their own
party. Others frankly acknowledged that they voted
for the Democrat in the popular election with the ex-
pectation that he could be defeated in the legislature,
thus bringing the direct primary and “ statement No.
1” into such disrepute as to lead to their repeal. While
the election was in progress in the legislature, one
member after another announced that, bound by state-
ment No. 1, he should vote for Chamberlain, but under
grave protest that injustice was being done by a law
which dictated the election of a candidate whose popu-
lar endorsement reflected with so little clearness the
real will of the people. The outcome was intolerable
250
YEAR OF PEOPLE’S RULE IN OREGON

to many of the old-time leaders of the Republicans;
and the most influential newspaper of the state came
out with the declaration: “ Republicans of Oregon in-
tend to repudiate Statement No. 1. They intend to
suggest in assembly or convention candidates for the
primary, and will put the knife into each and all who
declare for Statement No. 1.” This movement made
such progress that early in the summer “ assemblies ”
convened in the several counties and in July a state
“assembly” brought together some eight hundred
delegates “to select and recommend ” candidates for
Congress and for the full list of state offices. But as
a rose by any other name will smell as sweet, so the
“assembly,” as its opponents had confidently predicted,
gave forth odors indistinguishable from those which
had led the Oregon voters to banish the “ convention.”
The Oregonian, which had stood sponsor for the as-
sembly scheme, acknowledged that in the most impor-
tant county in the state the county organization had
been “too much in hands that did not have the gen-
eral confidence or public respect”; and it became
known that on the eve of the meeting of the assembly
there had been held a secret conclave, at the office of
a local corporation, attended by the representatives of
large financial and commercial interests, who had
looked over the whole field and had placed their stamp
of approval upon a full slate of candidates. With the
work of the assembly thus discredited in advance, it
is not strange that in the primary election in Septem-
ber, despite the efforts of the Republican machine
251
THE INITIATIVE, REFERENDUM AND RECALL

workers to put forward the assembly candidates as
those alone entitled to the loyal support of the Repub-
licans, many of these candidates met with defeat. The
Oregonian ruefully attributed much of the disaster to
“the more or less unsavory and notorious hangers-on
of both state and county headquarters.”’

There were other signs of an impending reaction.
In the preceding session of the legislature there had
been indications that the representatives of the people
were not entirely acquiescent in the spirit of some re-
cent “‘ direct legislation.” For example, the legislature
referred to the people a bill providing that a conven-
tion be forthwith elected for the purpose of revising
the constitution. The People’s Power League saw in
this proposition a grave menace. They insisted that
the initiative and referendum already provided ample
machinery for making whatever changes might be de-
sirable in the constitution; they professed fear that
the motive underlying this bill was a purpose to “ get
rid of the initiative, referendum, recall, direct primary
and Statement No. 1”; and they reminded the voters
of Oregon of alarming precedents—cases in which con-
ventions had refused to confine themselves to the tasks
imposed upon them or had promulgated a new consti-
tution without referring it to the people, even when
their instructions clearly prescribed such reference.

The preceding legislature also aroused much criti-
cism hy referring to the people a constitutional amend-
ment providing that state senators and representatives
should be elected by districts choosing only one mem-

252
YEAR OF PEOPLE’S RULE IN OREGON

ber each. The very object of this proposal, it was
alleged by its critics, was to make proportional repre-
sentation impossible. Yet the voters of Oregon had
committed themselves to the principle of proportional
representation only two years before by a vote of
more than three to two.

With a vote on these menacing measures in pros-
pect, and with the assembly candidates already in the
field, Oregon politics early developed heat. Two
months before the November election there appeared
and was mailed to every registered voter in the state
the official campaign book—the Oregon voter’s political
primer or cram-book for the coming examination in
government. This year it was larger than ever, con-
taining 208 pages. This book shows the voter, first,
precisely how each measure will appear upon the ballot,
thus:

Proposed by Initiative Petition,

“Women’s taxpaying suffrage amendment, grant-
ing to all taxpayers, regardless of sex, the right of suf-
frage.

“300. Yes.

"SOr... iG.

The “yes” and the “no” under each question are
accompanied, as indicated above, by a certain assigned
‘number by which it can be referred to; and voters are
exhorted from the stump and in the press to vote “ yes,
on 300,” etc. Next, the campaign book presents the
full text of every measure which is to come before
the voters. And, finally, there are appended such argu-

253
THE INITIATIVE, REFERENDUM AND RECALL

ments for or against any measures as interested per-
sons may file with the state printer, such persons paying
the bare cost of the additional printing and paper. Of
the thirty-two measures presented in the 1910 book,
only one was unaccompanied by something in the way
of argument, while some called forth as many as three
such contributions. Two-fifths of the volume—85 of
the 208 pages—were taken up by these attempts to
persuade the voters.

In regard to candidates, also, the state acts as a
distributor of information. In the first place, the
would-be candidate may file with the proper official a
statement of his views, to the extent of one hundred
words; and he may have printed against his name on
the nominating ballot the quintessence of his creed, in
not more than twelve words. Then, under a law of
1909, pamphlets compiled by the secretary of state are
issued, containing biographical sketches and portraits
of candidates for party nomination, together with the
arguments filed favoring and opposing certain of them,
the expense of such political advertising being paid
for by the candidate or by such of his representatives as
sign their names to it. Some of this material for the
last election was highly interesting, running all the way
from a dignified setting forth of the candidate’s con-
victions and pledges, on the one hand, to slangy bom-
bast and demagogy of the rankest nature, on the other.

Public speeches and debates were frequent. As
the election drew near, the press from day to day pub-
lished editorials on the leading issues, together with

254
YEAR OF PEOPLE’S RULE IN OREGON

lengthy letters from interested citizens, much as the
numbers of the Federalist—to cite an august precedent
—were published in the months while the ratification of
the federal constitution was in question. Thousands
of privately printed leaflets and pamphlets were dis-
tributed, and more use than ever before was made of
space in the newspapers; sometimes blanket pages,
plainly marked “ paid political advertisement,” were
devoted to a single question. To the majority of vot-
ers in Oregon—as in every other state—politics is, of
course, largely a game of “ follow my leader ”’; but it
would-have been difficult for any Oregon voter to have
remained totally ignorant of the principal points in-
volved in the more important measures on which he
was to vote. Moreover, in such a state of ferment
and heated discussion the leaders are forced to come
out into the open and show where they stand.

But in Oregon, with the dawn of election day,
“the tumult and the shouting dies,” for election pro-
ceedings are regulated by a most stringent Corrupt
Practices Act—an act, it is well to recall, which was
rejected by the legislature but was then forthwith put
before the people by initiative petition and by them
enacted. The “ Oregon system ” has thus supplied one
of the most essential conditions for its own successful
working. Election day in Oregon, since 1908, is a
political Sabbath, holy unto the state. The time for
argument and influence is past. The “ thou shalt not ”
of the law applies, not only to money payments to af-
fect votes, but to paying the expense of transportation

255
THE INITIATIVE, REFERENDUM AND RECALL

of voters to or from the polls and to buying, selling,
giving or providing “any political badge, button or
other insignia to be worn at or about the polls on the
day of election, and no such political badge, button or
other insignia shall be worn at or about the polls on
any election day.” Neither shall any person “at any
place on the day of any election ask, solicit or in any
manner try to induce or persuade any voter on such
election day to vote for or refrain from voting for any
candidate . . . or any measure submitted to the
people,” under penalty of a fine of not less than five
dollars nor more than one hundred dollars for the first
offence.

Assuredly the Oregon voter needed to be freed
from all distractions, on the eighth of last November,
if he were conscientiously to do his whole duty as a
citizen. It may be doubted whether any voters were
ever before confronted by so complicated a task as that
presented by the Oregon ballot of that day. For ex-
ample, the voter in precinct No. 9, Multnomah county
—a Portland precinct—had to make his choice, be-
tween candidates named upon the ballot to the num-
ber of 131, for the filling of forty-five federal, state
and county offices—and there were blanks where he
might write in the names of yet others. And when
he had recorded his choice among this host of candi-
dates, his task was hardly begun; for in Oregon the
voter is a law-maker, and it may be that more impor-
tant legislation was to be enacted that day than in Sa-
lem’s “ halls of legislation’ during the next two years.

256
YEAR OF PEOPLE’S RULE IN OREGON

Mr. Bryce tells us that the constitution of the United
States with all its amendments may be read in twenty-
three minutes. Merely to read aloud the titles of the
measures upon that Oregon ballot would take the voter
nine minutes. Cutting out all the explanatory head-
ings, the mere titles require something like 1,900
words—approximately three-sevenths of the number of
words in the federal constitution. Obviously the voter
must not postpone his weighing of arguments and the
making-up of his mind as to issues until he gets the
ballot in his hands, else the election would hardly yet
be over. Upon that ballot were thirty-two distinct pro-
jects of direct legislation—eleven of them involving
amendment of the state constitution—placed there by
three different processes. One, an act increasing the
salary of a certain judgeship, was a referendum or-
dered by petition of the people upon an act passed by
the last legislature. Six of the measures were referred
to the people by vote of the representative legislature.
The other twenty-five measures were proposed by ini-
tiative petition. These last-mentioned measures, of
course, either had never been passed upon by the legis-
lative assembly or—as in at least one instance—had
met with defeat at its hands.

What of the results of the election? In the first
place, it is to be noted that the culmination of so long
and so bitter a campaign brought out a very heavy
vote. The record shows that the state contains about
135,000 registered voters. The total number of bal-
lots cast, as shown by the poll books, was 120,248.

257
THE INITIATIVE, REFERENDUM AND RECALL

The contest for governor resulted in the election of
Oswald West, the Democratic candidate, by a vote of
54,853—a plurality of 6,102 over Jay Bowerman, the
Republican whose nomination had been forced by the
“assembly.” The Socialist candidate polled 8,059
votes, and the Prohibitionists 6,027. The victory of
the Democratic candidate is the more significant from
the fact that no other Democratic nominee was elected ;
indeed, in almost every other instance, the vote for the
Republican candidate was double that for the Demo-
crat. For the offices of state treasurer, attorney-gen-
eral and state engineer the Democrats presented no
candidates of their own; the Socialists, on the other
hand, made nominations for all of these offices and
polled votes ranging from thirteen to sixteen per cent.
of the vote cast—an exceptionally high percentage
for the Socialist vote in a state election, but doubtless
cast here for candidates acceptable to many outside of
the Socialist ranks.

Of the thirty-two projects of legislation, the ballot-
booth lawmakers enacted nine and rejected twenty-
three. But that fact, of itself, is of little significance,
except as indicating that direct legislation is to a de-
gree conservative. In attempting to get at the real
significance of this remarkable election, it is necessary
to note how the voters dealt with the widely diverse
types of projects submitted for their approval. One
of the most eloquent apostles of the direct legislation
movement, in a recent address, laid great emphasis
upon the proposition that direct legislation is a safe and

258
YEAR OF PEOPLE’S RULE IN OREGON

sane method of lawmaking because, “if the voters do
not understand a proposition that is placed before them,
they will simply vote against it.’ The writer sub-
mits that psychological theory and the results in this
election agree in showing that it is quite as likely that
the voters who do not understand a proposition will
not vote upon it.at all; and their mere abstention may
result in verdicts that are far from safe or sane.

In the present election, the total number of votes
cast for the several measures varied from 73,321 to
105,215—from sixty to eighty-seven per cent. of the
total number of votes cast in the election. No one of
the measures adopted received the approval of a ma-
jority of that total. Leading by more than 10,000 all
the other measures in their power to call forth votes
were the three propositions which related to the liquor
traffic. In recent years Oregon has had a local option
law under which the sale of liquor has been prohibited
in the majority of the counties. This encouraged the
anti-saloon men to hope that they might capture the
urban counties by the rural vote for state-wide pro-
hibition and orators were imported, even from the
Atlantic states, to wage the battle against the saloon.
To oppose this project, the “ Greater Oregon Home
Rule Association’ was formed and through its in-
fluence a constitutional amendment “ giving to cities
and towns exclusive power to license, regulate and con-
trol, suppress or prohibit the sale of intoxicating liquors
within the municipalities’’ was adopted by the close
vote of 53,321 to 50,779. On the other hand, a pro-

259
THE INITIATIVE, REFERENDUM AND RECALL

posed amendment prohibiting ‘“‘ the manufacture and
sale of intoxicating liquors and the traffic in them
within the state” was rejected, 43,540 to 61,221; and
a drastic proposal to “ prohibit, prevent and suppress
the manufacture, sale, posession, exchange or giving
away of intoxicating liquors . . . within the
state ’’ was rejected by a vote of 42,651 to 63,564. In
contrast with these hotly contested liquor questions
was a brief and vague tax measure, on which 32,000
fewer men expressed an opinion than on the local op-
tion amendment.

In considering the rest of the measures, many may
be dismissed with a word. Of the eight bills for creat-
ing new counties, every one was rejected. The total
votes on these questions ranged from 77,317 to 85,252.
In-not one of the eight cases was the adverse majority
less than 35,000, and in several instances the rejection
was by a vote of nearly five to one. Apparently, al-
though these measures were debated in the campaign
book, the great majority of the voters considered them
as purely local issues, with the presumption against
their merit. The large number of such measures upon
the ballot is accounted for by the fact that the present
law of Oregon does not allow counties to be created
or their lines to be changed by an ordinary act of the
legislative assembly; every such law must be voted
upon by the people. In view of the voters’ marked
disposition to defeat such propositions, it would seem
that some highly desirable changes may prove almost
impossible of attainment. At this same election, a bill

260
YEAR OF PEOPLE’S RULE IN OREGON

which provided for the change of existing county lines
and for the creating of new towns, counties and munic-
ipal districts by a majority vote of the legal voters of
the territory affected was rejected, 37,129 to 42,327.

Each of three bills providing for the permanent
support and maintenance of state normal schools called
forth large votes, ranging from 87,099 to 90,235, but
only one of them was passed. This result is of little
significance as the issues were almost purely local. By
far the heaviest adverse vote—a majority of 58,368—
was cast against a proposal for the payment to the
judge of a certain court of $1,000 annually by Baker
county, in addition to his salary from the state. It is
said that this proposal was not without precedent and
merit. The enormous vote against it is to be attrib-
uted mainly to the proverbial disposition of the voters
to keep salaries and other expenditures low—a ten-
dency which may have had its influence in the defeat
of the normal-school bills also. The state was here
dragged into a local quarrel, inasmuch as this measure
was an act of the legislature which had been held up
by a referendum petition. Another issue little calcu-
lated to be effectively handled by direct legislation was
the bill, proposed by initiative petition, prohibiting the
taking of fish from the Rogue River except by hook
and line. The interests of the up-river and down-
river people were here in conflict. The initiative pe-
tition was originated by an association of up-river men,
who charged that the salmon were being exterminated

by commercial fishing, and that it was for the interest
Ar
THE INITIATIVE, REFERENDUM AND RECALL

of the state to preserve angling on that river. On the
other hand, the representatives of a canning concern,
which had made very heavy expenditures upon a plant
at the mouth of the river—a plant which the proposed
law would have turned into junk—petitioned the pro-
bate court’ (for the cannery was part of an unsettled
estate) for permission to spend $10,000 to print and
distribute to all voters in Oregon a circular setting
forth facts as to the originating of the initiative peti-
tion and showing its errors. This request being de-
nied, they inserted in the campaign book an argument
minimizing or denying the points made by their op-
ponents; an argument was also presented by the fisher-
men of the county in which the cannery is located, set-
ting forth their interests in that industry; while the
Rogue River Fish Protective Association came to the
defense of their petition with a third argument. So
hopelessly contradictory were these opposing’ state-
ments of fact and of interest that the Oregonian
advised citizens to vote “no” as the safer course.
Nevertheless, the proposed prohibition of commercial
fishing was adopted, 49,712 to 33,397. Two of the
three counties most interested voted against the pro-
hibition by large majorities, but the third and most
populous—an up-river county—voted more than five
to one in its favor. Whichever way the decision had
turned, there would have been little presumption in fa-
vor of its justice. The question was one which required
the weighing of expert testimony as to the actual
effects of commercial fishing as practiced in the Rogtie
262
YEAR OF PEOPLE'S RULE IN OREGON

River. It was impossible for the voters to form a well-
grounded opinion from the interested arguments pre-
sented in the campaign book, and it was absurd that
such a question should be decided by the “ yes” or
“no” of thousands of voters who never were within
hundreds of miles of the scene of operation.

The matter of employees’ indemnity for injuries
sustained in the course of their employment came be-
fore the voters in two forms. By a vote of 32,224 to
51,719 they rejected a bill, proposed by initiative pe-
tition, for a commission of nine men, named in the
bill, to investigate the subject and submit a draft of a
bill to the legislative assembly. In the campaign book
this measure was opposed by the Oregon State Federa-
tion of Labor on the ground that such an investigation
was unnecessary inasmuch as the question had already
been thoroughly investigated in other states, especially
in New York. The federation further alleged that this
project was a mere blind, instigated by the Employers’
Association through whose influence an indemnity act
had been blocked in the last session of the legislature.
This labor organization was itself sponsor for a meas-
ure requiring protection for persons engaged in haz-
ardous employments, defining and extending the lia-
bility of employers and providing that contributory
negligence should not be a defence, although it might
be taken into account by the jury in fixing the amount
of the award. This was approved, 56,258 to 33,943.
This measure is in line with the position often taken
by Mr. Roosevelt and by such students of the labor

262
THE INITIATIVE, REFERENDUM AND RECALL

movement as the late Carroll D. Wright, who have in-
sisted that under modern industrial conditions the “ fel-
low-servant rule ”’ is an anachronism which often must
work grave injustice. But this is a complicated law,
making very drastic demands of employers, subjecting
them to fine or imprisonment or both in criminal pro-
ceedings for violation of the law, and giving depend-
ents of an employee killed in the course of his employ-
ment “a right of action without any limit as to amount
of damages which may be awarded.” Whether it is
for the best interests of Oregon industries and of the
employees themselves that these specific and heavy bur-
dens be devolved upon the employers remains to be
seen. It took the voters, however, not more than one
second apiece to declare by a majority of 23,000 that
this shall be the law.

By substantial majorities, two measures of general
interest were passed, the one providing for the loca-
tion, construction and government of a branch insane
asylum (50,134 to 41,504), the other authorizing
counties to exceed the $5,000 debt limit for the purpose
of building permanent roads within the county, pro-
vided such debts are incurred on the approval cf a ma-
jority of those voting on the question (51,275 to
32,906).

One of the most radical measures submitted
authorized the state or any county, municipality or
railroad district to purchase or construct railroads or
other highways within the state, and to lease or oper-
ate the same. It has been suggested that the real ob-

264
YEAR OF PEOPLE’S RULE IN OREGON

ject of this measure, which was referred to the people
by the legislature, was to secure better service from the
railroads by threat of state action. It was rejected,
32,844 to 46,070.

The pocket-nerve of the American voter is pro-
verbially sensitive. Upon the ballot were three meas-
ures relating to taxation. All of them were important,
yet not one of them polled a large vote; in fact, of the
two which were rejected, one stood at the very bottom
of the list of thirty-two and the other held thirtieth
place in the voters’ interest. The first of these three
was a constitutional amendment, referred to the peo-
ple by the legislature, “ directing a uniform rate of
taxation except on property specifically taxed, author-
izing the levy and collection of taxes for state purposes
and for county and municipal purposes upon different
classes of property, and appropriating state taxes as
county obligations.” This was rejected, 31,629 to
41,692. The second was a proposed constitutional
amendment, also referred to the people by the legisla-
ture, to omit from the constitution the words “and
all taxation shall be equal and uniform ” and to insert
in lieu thereof the words “taxes shall be levied and
collected for public purposes only, and the power to
tax shall never be surrendered, suspended or contracted
away.” This amendment also was rejected, 37,619 to
40,172. Students of Oregon taxation methods have
asserted that these two measures would open the way
for much-needed reforms. Both measures had been
passed by the legislature in response to pressure from

18 265
THE INITIATIVE, REFERENDUM AND RECALL

the granges, and both were supported in the campaign
book by an argument submitted by the Oregon State
Federation of Labor and the Central Labor Council
of Portland and Vicinity. But this argument shed lit-
tle light upon the precise effects to be expected from
the adoption of the proposed changes. If clear-headed
tax reformers believed that these measures were of
merit, they should have secured for them more effect-
ive exposition and advocacy. The third tax measure
called out a larger vote and was adopted by a small
majority, 44,171 to 42,127; yet its merit is probably
more dubious than that of either of the others. This
constitutional amendment was proposed by initiative
petition. It provides that the people of each county
may “regulate taxation and exemptions within the
county, regardless of constitutional restrictions or
state statutes, and abolishing poll or head tax.” This
amendment was advocated in a brief argument, which
covered the two preceding measures as well, by the
above-mentioned labor organizations. Principal stress
was laid upon its abolishing the unpopular poll tax,
and it is freely asserted that the mere inclusion in the
title of those words made a sufficient appeal to preju-
dice against that minor feature of the tax system to
secure the small majority by which the amendment
was adopted. The other point most emphasized by
its advocates was the opportunity which this law would
afford to each county to try experiments on a small
scale with different systems, from which experience
other counties might profit. It was further urged that
266
YEAR OF PEOPLE’S RULE IN OREGON

local regulation of taxation would thus secure to the
people “ the direct power to manage their own pocket-
books.” Nowhere in the measure itself nor in the
argument printed in the campaign book does the ulte-
rior object of the measure receive mention. That ob-
ject, however, was well known and generally recog-
nized; it was to make possible the adoption of the
“single tax,” piecemeal, by the several counties. In
1908 the single-taxers put before the people a modifica-
tion of the Henry George programme; the measure
was frankly and ably argued in the campaign book,
and it was rejected by a vote of nearly two to one
(32,066 to 60,871). This year the advocates of the
“Jand-value tax system ’”’ pursued a shrewder but less
ingenuous policy ; they allowed the labor organizations
to pull out of the fire some no-poll-tax chestnuts, which
are found to have a strong single-tax flavor. In the
press and on the stump the real object of this measure
was brought out, and it was advocated in a remarkably
effective campaign pamphlet, of which Mr. W. S.
U’Ren was one of the joint authors. It is singular
that none of the conservatives, who since the election
have been deploring the adoption of this constitutional
amendment, had interest enough to present their argu-
ments in the campaign book, where they would have
reached every voter. Opinions differ as to the out-
come. At the previous election in Multnomah county,
1908, the single-tax proposition was defeated by only
483 votes in a total of 22,139. This would suggest
that by the conversion of some three or four hundred
267
THE INITIATIVE, REFERENDUM AND RECALL

voters to the single-tax creed, the most populous county
of the state may be made the first important laboratory
for testing the Henry George theories. Naturally the
single-taxers are jubilant’; but in the rest of the com-
munity—even among those not indisposed to shift
upon land values a far heavier proportion of the tax
burden—there is a grave feeling of apprehension. It
is felt that no one county can safely stand aloof and
by itself in financial relations in which the interests of
the entire commonwealth are so closely interlinked.
The measure which called out by far the largest
vote, with the exception of the liquor measures, was
the “ women’s taxpaying suffrage amendment, grant-
ing to taxpayers, regardless of sex, the right of suf-
frage.” So read the official title placed upon the bal-
lot by the attorney-general. This is the fourth time
within ten years that this issue has been forced to a
vote, three times by initiative petition. At previous
elections the majority against women’s suffrage has
been as follows: in 1900, 2,137; in 1906, 10,173; in
1908, 21,649. This year the suffragists took a new
tack, emphasizing strongly the grievances of the many
taxpaying women of the state, and closing their ap-
peal thus: “ Oregon has now the opportunity to lead
the world in a safe and conservative extension of the
elective franchise to every woman who is taxed to sup-
port the government, and we earnestly hope we shall

 

1Mr. Joseph Fels, the leading single-tax propagandist has al-
ready gone to Oregon, and the single-tax programme is openly an-
nounced as the chief issue for I912.

268
YEAR OF PEOPLE’S RULE IN OREGON

not be compelled to repeat this appeal in 1912.” But
the voter who read not merely the ballot title and the
appeal but also the law itself found that there was a
glaring discrepancy between them; for the proposed
amendment made a positive and sweeping grant of the
suffrage to “ every citizen of the United States of the
age of twenty-one years and upwards, who shall have
resided in the state during the six months immediately
preceding such election,” and so forth. Only after this
positive grant had been fully set forth was there
added: “It is expressly provided hereby that no citi-
zen who is a taxpayer shall be denied the right to vote
on account of sex.” As the opponents of the measure
said, in their campaign book argument: “ The last
clause in the proposed amendment about taxpaying
women is pure buncombe. It adds nothing to and de-
tracts nothing from the preceding provisions.’ The
placing of the above title upon such a measure
suggests some interesting questions. What is to
be said of the legal acumen of an attorney-general
who could either formulate or accept such a mis-
leading title? As for the women who presented
this as “a safe and conservative extension of the
elective franchise to every woman who is taxed,” if
they were not clear-headed enough to see that the law
would at the same time extend the suffrage to every
woman who is not taxed, provided she were a citizen
of the required age and residence, their addition to the
electorate would not tend greatly to raise its intellec-
tual plane; if, one the other hand, as a last resort they

269
THE INITIATIVE, REFERENDUM AND RECALL

were willing to win the suffrage by a shabby trick,
they would bring to the polls little of that elevation of
political morality which they have often claimed would
be their chief contribution to political life. The voters’
verdict, for the fourth time, was against woman’s
suffrage, 35,270 to 59,065."

There remain to be considered the measures which
most closely concerned the future of “people’s rule”
in Oregon and of the ‘‘ Oregon system.” By the legis-
lature there were referred to the people two measures
which were backed by much the same influences which
instituted the “assembly’”’ and forced Bowerman’s
candidacy as the Republican nominee. The first was

 

1 The Oregon suffragists’ initiative petition for 1912 has already
been filed (January, 1911).

It is singular that on the same day (November 8) in the adjoining
state of Washington the voters should have adopted a woman's
suffrage amendment by a considerable majority. On the eve of the
election Alfred Brown, who had been on the stump in Washington
for woman’s suffrage, predicted its victory at the polls, adding:
“The ambiguous wording of the amendment will poll many votes for
suffrage since the words ‘woman's suffrage’ are not mentioned.
We... often vote ‘yes’ when we don’t know what we are voting
for.""—Boston Herald, November 5, 1910.

The suffrage was extended to women in Washington Territory
by a law of 1883, entitled ‘“‘An Act to amend sec. 3050 ch. 238 of
the Code of Washington Territory.’’ Under this women voted in
Washington till 1887 when this law was held to be unconstitutional
because its object was not expressed in its title as required by the
Organic Act. ‘‘Females then are not voters in this territory.”
Harland v. Territory of Washington, 3 Washington Territorial Re-
ports, 131. It isa singular coincidence if woman’s suffrage has now
been restored in Washington by means of a ballot title purposely
evasive “relating to the qualifications of voters.”

279
YEAR OF PEOPLE’S RULE IN OREGON

a measure providing for a convention for the purpose
of making a general revision of the constitution. This
was antagonized by the People’s Power League, not
only because it was needless and would occasion un-
necessary expense and disturbance of business, but
also on the ground that it was a scheme for getting
a constitution adopted and “ proclaimed ” which would
do away with the initiative, the referendum, the recall,
the direct primary and “statement No. 1.” It was
defeated, 23,143 to 59,974. The second measure pro-
posed an amendment of the constitution providing a
separate district for the election of each senator and
representative. This was an obvious attempt to pre-
vent the carrying out of the principle of proportional
representation, adopted by the Oregon voters by a
large majority, only two years earlier; and it was
rejected by a vote of 24,000 to 54,252.

The People’s Power League succeeded better in
defending the ground already won than in capturing
the new fields toward which they had directed their
campaign. Of the four measures which they formu-
lated by the elaborate process described above, and to
which they gave earnest support in the campaign book,
in the press, in pamphlets and on the stump, the two
more radical measures were rejected. Of these, the
one which suffered the worst defeat was the proposed
law creating the board of “ people’s inspectors of gov-
ernment,” who were also to be charged with the duty
of publishing the Oregon Official Gazette. This meas-
ure was loosely drawn; it sought to create an office

271i
THE INITIATIVE, REFERENDUM AND RECALL

which was an absolute innovation; and some of its
features were calculated to arouse distrust. The news-
papers ridiculed and opposed the institution of any
such board of recording angels for functions which
the press assumes to perform, and the measure was
rejected, 29,995 to 52,538. Defeat, though by a closer
vote, 37,031 to 44,366, was also the fate of one of the
most carefully thought out and comprehensive meas-
ures upon the ballot, namely, the proposed constitu-
tional amendment which essayed to redistribute the
legislative power in a commonwealth where the initia-
tive and referendum have received unprecedented ex-
tension. There was no measure upon the ballot of
equal political interest, and none of which the opera-
tion would have commanded, in anything approaching
the same degree, the attention of the country. It
would have introduced a variety of untried correctives
for legislative abuses which are widespread—the ger-
rymander, tyrannical rules, absenteeism and log-roll-
ing.

By a still closer vote, 43,353 to 41,624, the pro-
visions of the direct primary law were extended to
presidential nominations. On the nineteenth of April,
1912, accordingly, each voter of Oregon will have a
formal opportunity to designate his personal choice
of candidates for president and vice-president of the
United States; later he may take part in nominating
directly candidates for presidential electors, and in
electing, under a system of proportional representation,
delegates to the national conventions. Men of char-

272
YEAR OF PEOPLE’S RULE IN OREGON

acter and not merely of cash may stand a better chance
of being elected delegates, since the state is to pay the
expenses of each, up to $200. Space to the extent of
four pages will be available in the state campaign
book for setting forth the reasons why each of the sev-
eral candidates for any office to be voted for by the
voters of the state at large should be elected. The sena-
‘torial and congressional candidates must pay at the
rate of $100 a page, but “no charges shall be made
against the candidates for president and vice-president
of the United States for this printed space.” Four
pages of free political advertising are therefore to be
available for each regularly nominated presidential
candidate in 1912. It may be of interest to several
recently elected governors of eastern states to know
at once that the Oregon campaign book runs about six
hundred words to the page.

By a substantial majority, 44,538 to 39,399, the
voters adopted the amendment aiming at reforms in
the administration of the law. The most significant
changes are the abolition of the grant of new trials
on mere technicalities and the substitution of a three-
fourths majority for unanimity in the rendering of a
verdict by a jury in civil trials.

As the smoke of the contest clears away, it is
evident that “ people’s rule’ has strengthened its posi-
tion. In a state normally Republican by 25,000, the
election of a Democrat by a plurality of 6,000 over the
Republican forced upon his party by the “ assembly ”
can have no other meaning than that the rank and file

273
THE INITIATIVE, REFERENDUM AND RECALL

of the voters resent the attempt to emasculate the
direct primary and the “ Oregon system.” The rejec-
tion of the proposed constitutional convention indi-
cates that the voters are confident that needed changes
can be made by the initiative and referendum, and that
they do not propose to run any risk of losing those
powerful agencies of public opinion. They rejected
the single-district measure, because they had already
committed themselves to the principle of proportional
representation, although they were not yet ready to
accept the application of it submitted to them at this
election. In approving the reform of the judicial sys-
tem and the extension of the direct primary law, they
were following the same leadership which in the past
ten years has made Oregon the most interesting po-
litical experiment station in the country and has con-
ferred upon her people a greater degree of direct self-
government than is to be found in any other American
commonwealth.

But does this “ new birth of democracy” promise
permanence of the good and progress toward the bet-
ter? It must be confessed that the election just past
has given its notes of warning. In the first place, the
ballot was a preposterous thing. “It’s like voting a
bed-quilt ” was the comment of one of the policemen
at the polls. Experience will certainly prove that the
“short ballot’? movement and the “ people’s rule”
movement must go together. The voter’s task must be
made reasonable. Not even the allowing of two
months for the conning of a campaign book can make

274
YEAR OF PEOPLE’S RULE IN OREGON

it reasonable to expect that the voters, at a single elec-
tion, will choose with discrimination forty-five officers
from a list of 131 candidates and then vote with intel-
ligence upon thirty-two measures of every variety and
grade of importance. It is generally conceded that a
considerable proportion of the measures were absurdly
unsuited to be voted upon by the people of the entire
state. This was certainly the case with the eight
county bills; the three normal-school bills probably be-
long in the same class; and at least two other measures
were of little general interest. The men who have had
most influence in introducing “ people’s” rule in Ore-
gon are not blind to this defect. In the first draft of
the measure for reconstituting the legislative power
there was a provision that the number of direct legis-
lation measures to be voted on at any one election
should be limited to twelve, and this clause was
strongly supported by argument from theory and from
Oregon experience. It was found, however, that this
proposed limitation upon the voter’s power was un-
popular, and it was accordingly thought best to cut it
out lest it should imperil the entire measure. The
Oregon voter has found that he can make laws, and
he is little impressed by the argument that he would
do this work better if he attempted less of it at one
time. :

The experience of this election, furthermore, has
proved the need of attention both to the psychology
and to the ethics of title-writing. One measure, said
to have been of genuine merit, is believed to have been

275
THE INITIATIVE, REFERENDUM AND RECALL

defeated because its title included a doubt-raising
clause which had been successfully avoided in the text
of the law itself. Another measure of dubious merit
was passed, probably because the title, while silent as
to the main intent of the law, made a successful ap-
peal to an exaggerated popular prejudice against a poll
tax. Direct legislation is not the spontaneous register-
ing of the individual voter’s matured judgment as to
the best method of dealing with a given problem; the
voters simply say “yes” or “no” (or say nothing)
to specific proposals originated, framed and phrased—
and every step in the procedure is of consequence—
for them by some one else. By whom? For what?
These may at times prove disquieting questions. For
example, not one of the three tax measures upon the
November ballot was drawn in such language as to
make its intent clear and unmistakable; nor was this
lack supplied by any enlightening argument in the
campaign book, the one argument there submitted, in
joint advocacy of the three, being in tone and in logic
little calculated to serve as the basis for forming a can-
did judgment. Direct legislation will presently be giv-
ing to Oregon a poor travesty of “ people’s rule,” un-
less to the framing of laws and to the phrasing of their
titles there is brought a keener intelligence and a more
sensitive conscience than were responsible for the law
intended to secure the piecemeal introduction of the
single tax and for the “ women’s taxpaying suffrage
amendment.’’ As one of the writer’s correspondents
puts it: “It is quite clear that popular legislation can
276
YEAR OF PEOPLE’S RULE IN OREGON

be worked only by ‘ simplifying’ issues; and the fur-
ther this goes, the more important becomes the real
initiative of the irresponsible persons, whether pa-
triots or schemers, who formulate the ‘ simplified ’
issues.”

On the whole, considering the immense complexity
of the task which was set before them, it must be
acknowledged that the Oregon voters stood the test
remarkably well. They detected and repelled covert
attacks upon their own power; they rejected measures
so radical as to arouse doubts; they gave their ap-
proval of laws which, in the main, are consistent and
develop the system already adopted.

Critics will differ as to the merit of the several
measures, and they may deride “ voting by the square
yard.” But this much the most conservative of them
must concede: in Oregon the state is not shriveling
up, nor have national issues there entirely submerged
state issues—two valid criticisms which Mr. Bryce
passed upon American state politics in general. In the
past twelve months Oregon voters have had affairs of
their own to think about, which have been quite as
engrossing as the tariff or the new nationalism. There
has been a vitality, a genuineness in Oregon politics
sharply in contrast with the state campaigns in many
of the eastern states. In Oregon no man has been able
to read his title clear to office in the state or at Wash-
ington by merely subscribing to the creed of some
leader in one of the national parties; he has had to
face the question: “ What do you stand for, on these

277
THE INITIATIVE, REFERENDUM AND RECALL

definite issues regarding the carrying on of govern-
ment in Oregon?” With keen interest the voters
have been grappling with the problems—political, in-
dustrial, educational, financial—of self-government
within their own state. A genuine campaign of edu-
cation has been in progress, which cannot fail to pro-
duce important and enlightening results, quite above
and beyond the verdict rendered November 8 upon the
various points which were at issue during the preced-
ing months of debate.
CHAPTER XI

THE UNFAVORABLE RESULTS OF DIRECT LEGISLATION
IN OREGON

THE other side of the question concerning the
value of direct legislation has been presented by Fred-
erick V. Holman, Esq., the President of the Oregon
Bar Association. The Chicago Civic Federation,
which is also opposing the initiative and referendum,
has given widespread publicity to Mr. Holman’s views
in one of its bulletins, which is here reproduced :

I am here to tell you of some of the results under
the initiative and referendum amendment of the
Oregon constitution. I am a native of Oregon.
It has always been my home, and, therefore, I
can claim some familiarity with the economic condi-
tions which prevail in my native state. While Oregon
has an area of over 90,000 square miles and is one-
third larger than the state of Washington, it has
grown slowly. By reason of the lack of railroads the
eastern part of Oregon—approximately 55,000 square
miles—is sparsely settled. Its population is 672,765,
a little less than one-third of the population of the city
of Chicago. The total vote for governor in Novem-

279
THE INITIATIVE, REFERENDUM AND RECALL

ber, I910, was 117,690, a little more than one-third of
the vote of Chicago last November. Portland is the
only city of any considerable size in Oregon. Its pop-
ulation is a little over 207,000. Two-thirds of Ore-
gon’s population, therefore, is in small towns and in
the country at large. We must consider, too, that Ore-
gon was settled by hardy and intelligent pioneers
whose influence is still largely felt.

If you in Hlinois wish to learn of the initiative and
referendum by our experience, it is now a good time
to begin. If the plan is unsatisfactory in Oregon, with
its agricultural and village population, largely of
Anglo-Saxon ancestry, keenly interested in public af-
fairs and with environments conducive to deliberation,
what will be the result in the cosmopolitan city of Chi-
cago, with a steadily increasing proportion of its vast
population accepting for the first time large responsi-
bilities in citizenship, and with its hurry and turmoil of
economic life anything but favorable to the study and
deliberation presupposed by the initiative and referen-
dum? Obviously the Oregon plan might succeed in
Oregon and be a failure in Illinois. But, if the plan
has failed in Oregon in times of quiet and prosper-
ity, what may be your experience of legislation by
popular vote in times of unrest, turmoil or mob vio-
lence? Has it failed in Oregon? Let us scrutinize
the facts.

When the initiative and referendum amendment to
the constitution of Oregon was proposed, its advocates
stated (as I understand it has been alluringly stated in

280
UNFAVORABLE RESULTS IN OREGON

Illinois) that it was to be merely a club in the hands
of the people for securing good, and checking bad,
legislation; that it would be invoked rarely and would
be a “ reserve ” power and not an active nor a disturb-
ing power. There was no scandalous conduct of our
state affairs to demand this amendment. No public or
quasi-public corporations sought to control the politics
of the state or to meddle with public affairs as was the
case in California and some other states. Our legis-
lature was no worse than other state legislatures;
probably better than some. But on the plea of agita-
tors that its character would be improved, and after
endorsement by all political parties, this amendment
was adopted in 1902 by a vote of 62,024 to 5,668, with
no debate and little serious consideration on the part
of most voters, and with about twenty-four per cent.
of all the voters at that election failing to vote on the
measure at all. This amendment provided for the
initiation of legislation (the placing of a law or con-
stitutional amendment on the ballot to be voted up or
down) by petition of “not more than eight per cent.
of the voters,” and for the submission of legislative
enactments to popular vote by petition of five per cent.
of the voters. These same percentages I understand
are now proposed for Illinois.

We now come to the consideration of three basic
questions :

1. To what extent did this amendment operate as
a “reserve” power, and to what extent was it thus
effective ?

19 281
THE INITIATIVE, REFERENDUM AND RECALL

2. What character of legislation was proposed
under this “ reserve ” power?

3. Did the people use this
telligently ?

In reply to the contention that this “ reserve”
power would improve the character of the legislature,
I will state, without fear of contradiction, that there
has been no substantial change in the kind of legisla-
tors since the adoption of this amendment. As to the
operation of this amendment as a “reserve” power,
I shall merely call attention to the constant increase
in size of our direct legislation ballots. In 1904 two
measures were submitted; in 1906, eleven; in 1908,
nineteen (ten constitutional amendments and nine pro-
posed laws) ; in 1910, thirty-two (eleven constitutional
amendments and twenty-one proposed laws, and the
initiative was responsible for twenty-four of these
propositions).

How many propositions shall we have placed upon
our ballot for the confusion of our voters at our next
state election? Signatures are easy to get. In Oregon
any person may have any crank measure, proposed law
or constitutional amendment alike, placed upon the bal-
lot. All that is necessary is a petition and the signa-
tures of not less than 10,000 voters, and professional
signature-getters will get the signatures—for a con-
sideration.

_ The general characteristics, particularly of initia-

tive measures, have been careless and loose phrase-

ology, and ambiguities leading to difficulties for the
282

‘

“reserve”? power in-
UNFAVORABLE RESULTS IN OREGON

supreme court. The very vagueness of the phrase
“not more than eight per cent. of the legal voters,”
in the initiative amendment itself is typical of the
crudity of resulting measures. The petition which
“shall include the full text of the measure proposed,”
once filed, cannot be amended. One measure was
adopted which was declared void because it had no
enacting clause. The omission was discovered after
the petition was filed, and the measure could neither be
amended nor withdrawn from the ballot. Another
fundamental objection to the Oregon plan is that it is
rapidly depriving us of that stability in government
which the constitution is designed to supply. A con-
stitution is a bill of rights setting forth the basic prin-
ciples under which the people commit themselves to re-
striction of individual privileges for the benefit of the
mass. The Oregon constitution is now being changed
as readily and almost as frequently as the statutes and
by minorities of the voters. It is optional with the au-
thor of any initiative measure whether it shall be pre-
sented as a proposed amendment or as a proposed law.
The only real distinction lies in the fact that the legisla-
ture may repeal an objectionable law, but that a bad
constitutional amendment can be repealed only at the
next election by a majority of those voting on the ques-
tion, and therefore remains operative much longer
than the law.

Having thus observed the operation of the initia-
tive and referendum as a “ reserve” power, let us see
whether or not the voters use this power intelligently.

283
THE INITIATIVE, REFERENDUM AND RECALL

Senator Bourne of Oregon, speaking in the United
States Senate, May 5, 1910, said that the people of
Oregon had acted intelligently on the initiative and
referendum up to and including the year 1908, the
election of 1910 being subsequent to the delivery of his
speech. We naturally ask what is “acting intelli-
gently”? When is such action possible?

I have not calculated the percentage of electors
voting on all the various measures, but I am informed
by an ardent advocate of the Oregon plan that the
greatest percentage of voters who have acted on any
of these measures in Oregon is ninety per cent. and
the smallest, sixty-two per cent. This is based on the
number of electors voting at an election, not on the
registered vote. On this basis ten per cent. do not vote
at all and as many as thirty-eight per cent. do not vote
on some measures. Under the Oregon plan it is a
majority of those voting on a proposition, not a ma-
jority of all the voters, which determines its fate.
Certainly those who do not vote on a measure do not
act intelligently on it. There are many who vote
““yes’’ on all measures, as some vote their straight
party ticket without regard to fitness of the candidates,
and this cannot be called intelligent voting. Then
there are many men of business affairs and intelli-
gence who have not the time to consider most of these
measures and who, unless their attention is especially
attracted, vote “no” without regard to the merits or
demerits of amendments and laws. In my opinion,
such men do not act intelligently. It is impossible to

284
UNFAVORABLE RESULTS IN OREGON

ascertain the number of voters who act thus unintelli-
gently, excepting, of course, those who do not vote at
all. It is significant, however, that the average per-
centage of those voting for state officers who also have
voted on initiative and referendum measures has de-
creased progressively from 78.5 per cent. in 1904 to
72.2 per cent. in IQIO.

Comparatively few of the direct vote measures in
1910 received more than 8o per cent. of the total vote
for governor. The total vote on the woman’s suffrage
amendment (overwhelmingly defeated) was 563 votes
more than 80 per cent. Most of the measures acted
upon may be grouped as follows with reference to the
percentage they received of the vote for governor:
three measures, between 75 and 8o per cent.; twelve,
between 70 and 75; twelve, between 65 and 70; one,
a fraction less than 62.04 per cent. The principal in-
terest in these initiative measures in 1910 touched
three questions affecting the sale of liquor. These
received total votes of 101,375 (86.13 per cent.), 104,-
712 (89.81 per cent.) and 106,213 (90.24 per cent.).
Thus it will be seen that (with the exception of the
three liquor measures and that for woman’s suffrage)
40 per cent. of the total vote might have carried twelve
measures; 35 per cent. twelve, and less than 32 per
cent. one. Moreover, not one of the nine measures
which will carry, including the home-rule amendment,
received a majority of the total vote. It is a political
axiom that the majority should rule, but without
prejudice to the rights of the minority. In Oregon

285
THE INITIATIVE, REFERENDUM AND RECALL

under the initiative the minority rules in many in-
stances and sometimes to the prejudice of the major-
ity, as I shall subsequently show.

I cannot go into all the measures voted upon since
1902, but I shall cite a few voted on in 1908 and I910
to show you that if the initiative and referendum are
good per se (and I am convinced they are not), then
the Oregon form is not a good one.

In the Columbia River below the mouth of the
Sandy River salmon are taken mostly by gill nets, traps
and seines. Above the Sandy River they are taken
mostly by fish-wheels in rapid water. Strong antago-
nism between the lower and upper river fishermen has
resulted. In 1908 each of these interests under the
initiative proposed a bill, one designed to prohibit
commercial fishing below the Sandy River, and the
other calculated to prohibit commercial fishing above it.
Each of these bills received a favorable majority at the
election ; became law, and all commercial fishing on the
Columbia was prohibited. It is true that when two
antagonistic bills each receive a majority, the one hav-
ing the largest affirmative vote is to be regarded as
the law; but these two bills were not antagonistic, each
applying to different parts of the Columbia River. For-
tunately the legislature met before the next fishing
season and the matter was adjusted. However, had
those bills been amendments to the constitution there
could have been no relief until the next regular elec-
tion two years after, and one of the great industries of
our state would have been paralyzed. Did the vote

286
UNFAVORABLE RESULTS IN OREGON

on these fishing bills show intelligent action? Doubt-
less there was need for some wise conservation all
along the stream, but these bills provided nothing of
the kind, and the voters cannot be blamed for failure
to act intelligently, because no opportunity for intelli-
gent action was afforded. That, however, is scarcely
an argument for the initiative.

The University of Oregon, of which I have been
a regent for several years, has a small endowment
which brings in a revenue of about $25,000 a year.
Prior to 1907 it received appropriations at each bien-
nial session of the legislature. In the session of Janu-
ary, 1905, the legislature appropriated for the univer-
sity $62,500 a year for two years. A referendum peti-
tion was filed within ninety days after the legislature
adjourned, and the vote on this referendum could not
be had until June, 1906, the next regular election,
nearly a year and a half after the appropriation was
made. During that time the moneys of the university
became exhausted and it would have been compelled
to close its doors had not the professors agreed to con-
tinue their duties and to receive no pay if the referen-
dum was successful. Fortunately there was a small
majority in favor of the appropriation.

Two years later, in the session of January, 1907,
the legislature gave the state university a continuing
appropriation of $125,000 a year. Again a referen-
dum petition was filed against this appropriation, with
a similar result. The moneys again were exhausted and
the professors again agreed to receive no pay if the

287
THE INITIATIVE, REFERENDUM AND RECALL

referendum was successful. The vote was taken in
June, 1908, nearly a year and a half after the bill
passed the legislature. Out of a total vote of 105,298
at that election there was a total vote on the referen-
dum of 84,650, divided thus:

For the appropriation............ 0.00 cece ence ee seen ene 44,115
Against the appropriation........ 0.0.0.0 6. cece eee eee 40,535
Majority of votes cast on proposition.................00. 3,580
Percentage of voters not concerned with fate of the state
UNIVErSItY ss sca dawad. cts Reten ve chess RO EW EEE wees 19.6

The vote cast against the appropriations for Ore-
gon’s state university may have been intelligent but
it is not educational, except as an argument against
the indiscriminate use of the referendum.

In 1908 a single-tax amendment to the constitution
was presented to the voters. It declared in the title
for wholesale exemptions, and the opening statement
in the affirmative argument filed with the secretary of
state read, “the proposed amendment is a step in
the direction of the single tax.” This amendment was
decisively rejected by the following vote:

For the amendment......... SeROY Cac Eve Meee igs een S 32,066
Against the amendment.................... eee eee eee 60,871
Majority against adoption............ 0.00.0 c cece eee eee 28,805

Percentage of total vote cast recorded against amendment. 57.7

The single-tax advocates were persistent and in

1910 submitted three single-tax amendments by initia-

tive petition. Two were barely defeated, the vote on

them being so light that less than thirty-six per cent.

of the vote for governor would have carried them.

The third amendment was carried. It was worded
288
UNFAVORABLE RESULTS IN OREGON

more attractively than the one rejected in 1908, the
opening sentence stating that “no poll or head tax
shall be levied or collected in Oregon,” and not one
word was said about the single tax in the affirmative
argument which emphasized the injustice of the poll
tax, and held out the promise that: “ the approval of
these amendments will give to the plain people and the
taxpayers of Oregon more bread and butter profits
from the government than they have ever had in the
past.”” What did this mean? Was it an appeal to in-
telligence?
The vote on this amendment stood:

For the amendment :«.....4.4.5.%00 500 05 S49 Hes OSG es ae 44,171
SA PaINS Eo eres ind Scans aitcn eas cotsae dations uahaaes Sok aoa AMES 42,127
Preponderance of votes for.........0. ccc eeeeeenee er eeees 2,044
Total vote cast for governor. ...... 0... cece eect ee eens 117,690

Thus 37.53 per cent. of the voters of Oregon ap-
proved in 1910 a measure, which, in its true guise, had
been defeated only two years before by a clear ma-
jority. Was this intelligent action?

One of the proposed constitutional amendments
in I9I10 provided for the purchase, condemnation or
construction, and operation of railroads by the state.
The idea of a state of Oregon’s limited development
and revenues attempting such a thing is on its face
absurd, but the following vote shows how near the
half-baked ideas of some crank came to receiving au-
thority:

For the amendment... ............ ccc ccesscceeeeccevares 34,013
Against the amendment. ......... 0.0 cece eee e cence eeeee 46,112

289
THE INITIATIVE, REFERENDUM AND RECALL

In other words, if 39.25 per cent. of all voters had
voted for this amendment the state would have been
authorized to engage in the railroad business.

In 1908 a constitutional amendment was submit-
ted increasing the number of supreme court judges
from three to five, and simplifying procedure in the
lower courts by giving circuit courts original jurisdic-
tion of probate matters, then exercised by county
courts. This excellent amendment was defeated. At
the 1910 election a most remarkable amendment, em-
bodying all and more than was contained in the de-
feated amendment, was proposed and adopted. It
placed no limit on the number of supreme court judges
but provided that lower courts and their jurisdictions
might be changed by law, and stated prominently in
the title that in civil cases three-fourths of a jury
might render a verdict.

The most objectionable features of this amendment
are in section 3, which is as follows:

“Section 3. In actions at law, where the value in
controversy shall exceed $20, the right of trial by jury
shall be preserved, and no fact tried by a jury shall
be otherwise reéxamined in any court of this State,
unless the Court can affirmatively say there is no evi-
dence to support the verdict. Until otherwise pro-
vided by law, upon appeal of any case to the Supreme
Court, either party may have attached to the bill of
exceptions the whole testimony, the instructions of the
Court to the jury, and any other matter material to the
decision of the appeal. If the Supreme Court shall be

“200
UNFAVORABLE RESULTS IN OREGON

of opinion, after consideration of all the matters thus
submitted, that the judgment of the Court appealed
from was such as should have been rendered in the
case, such judgment shall be affirmed, notwithstanding
any error committed during the trial; or if, in any re-
spect, the judgment appealed. from should be changed,
and the Supreme Court shall be of opinion that it can
determine what judgment should have been entered in
the court below, it shall direct such judgment to be en-
tered in the same manner and with like effect as de-
crees are now entered in equity cases on appeal to the
Supreme Court, provided that nothing in this section
shall be construed to authorize the Supreme Court to
find the defendant in a criminal case guilty of an of-
fense for which a greater penalty is provided than that
of which the accused was convicted in the lower court.”

It will be seen that there is apparently a conflict
between the provisions of the first sentence of section
3, relating to the effect of a verdict by a jury in an
action at law, and the power and duty of the supreme
court on an appeal when there is attached to the bill of
exceptions by appellant or respondent, “ the whole tes-
timony, the instructions of the court to the jury, and
any other matter material to the decision of the ap-
peal.” Under the familiar rule of construction that
where, in a statute, there are apparently conflicting
provisions they must be reconciled if it is possible to
do so, section 3 should be construed to mean that the
verdict of a jury cannot be reéxamined by any court
inferior to the supreme court, and only by the latter

291
THE INITIATIVE, REFERENDUM AND RECALL

when the whole record is before it. Thus a circuit
court cannot grant a new trial if there be a verdict of
a jury with a scintilla of evidence to support it, even
when such a verdict is outrageous or given under
prejudice or passion; probably, not on account of
newly discovered evidence. Once a verdict always a
verdict until it reaches the supreme court.

The appeal provided for in section 3 applies to
both civil and criminal cases. The words are: ‘“ Upon
appeal of any case to the supreme court” the provi-
sions apply, and what are the provisions? Either the
appellant or respondent may (and certainly the appel-
lant always will) “have attached to the bill of excep-
tion the whole testimony, the instructions of the court
to the jury, and any other matter material to the de-
cision of the appeal.” The verdict of the jury in the
court below is not necessarily even a guide to the su-
preme court, which must be guided by “the whole
testimony, the instructions of the court to the jury,”
and also “any other matter’ that either the appellant
or respondent may deem “ material to the decision of
the appeal.” Judgment may be entered “ after a con-
sideration of all the matters thus submitted.” If the
supreme court decides for the respondent, it may do
so not only, “ notwithstanding any error committed
during the trial” in the court below, but also it must
consider whether the judgment “was such as should
have been rendered in the court below,” after a review
of the whole testimony and also after considering
“ other matters ” in the record. There may be similar

292
UNFAVORABLE RESULTS IN OREGON

action by the supreme court in favor of the appellant
if “it shall be of the opinion that it can determine what
judgment should have been entered in the court be-
low.” By this method of appeal is not trial by jury
practically abolished in Oregon? And yet trial by jury
has been in existence in English-speaking countries
from the time of Anglo-Saxon rule in England until
the present day.

This amendment makes no provision for sending
the case back to the lower court for re-trial. Its ap-
parent object is to authorize the supreme court to
determine finally every law case appealed and also
criminal cases, and to direct what judgment shall
be entered in the court below. But also appar-
ently it gives the supreme court power to dispense
a kind of crude oriental justice according to its
“ opinion.”

Now note this additional confusion. Section 3 per-
mits change by law of the powers conferred by it on
the supreme court, as to determination of what judg-
ments shall be entered in civil or criminal cases, but
no law can change the first sentence of section 3. Only
a constitutional amendment can affect that. Take the
power from the supreme court to set aside a verdict
and render a judgment, and a verdict once given, how-
ever unjust or unfair, cannot be reéxamined by any
court. For centuries the jury has been a check on
the tyranny and corruption of judges. Upright judges
have corrected the verdicts of ignorant, prejudiced and
-venal juries. To do away with this balance of power

293
THE INITIATIVE, REFERENDUM AND RECALL

is to set aside the best safeguards for justice which
man has been able to devise.

The first sentence of section 3 makes it appear that
this section applies to civil cases only, but the rest of
the section applies to criminal cases also. There is
no limitation on the ‘‘ appeal of any case to the su-
preme court,” but the limitation is “ provided, that
nothing in this section shall be construed to authorize
the supreme court to find the defendant in a criminal
case guilty of an offense for which a greater penalty
is provided than that of which the accused was con-
victed in the lower court.”

If the accused is convicted in a lower court of a
crime for which he was not indicted nor tried, an ap-
peal will lie. But the supreme court may find him
guilty of an offense, without indictment, the only limi-
tation being that it shall not find him guilty “of an
offense for which a greater penalty is provided than
that of which” he ‘“‘ was convicted in the lower court.”
The accused may be indicted in the circuit court for
murder and convicted of rape or arson by the supreme
court; indicted for burglary, and convicted on appeal
of mayhem, or of some other crime against which he
had no opportunity to make a defense. Take this
amendment with its contradictory provisions and de-
termine, if you can, what was in the minds of its
framers. And how could the voters act intelligently
thereon?

Then consider the vote by which this amendment
was adopted—44,545 for, and 39,307 against. The
294
UNFAVORABLE RESULTS IN OREGON

approximate percentages of those who voted and those
who did not, as compared with the votes for gov-
ernor, were:

Por thesamendment: 20.4 sx, casei ps oe ae eee Gee Sere es 37.85
Against the amendment............. 0... eee ee eee © 33-40
Not ‘Voting sc. c.s Sse Acces es hide Sees SE wee slate Rae iairetees 28.75

And thus less than thirty-eight per cent. of the
voters amended the constitution to the prejudice of the
rights of the other sixty-two per cent., and of them-
selves, and imperil one of the safeguards of personal
liberty. A leading advocate of the Oregon plan asked
me lately why I let this amendment be printed in the
official pamphlet without an argument against it. I
admitted my delinquency and. he voiced a favorite
maxim of the advocates to the effect that I had no
right to complain. I admit that I failed in my duty,
but is that any reason why the rights of sixty-two
per cent. of the voters, of women and of children yet
to be born, should be imperiled, and that a minority
should rule in so important a matter?

Thirty-two propositions at one election, most of
them involving complex questions! It took a pamphlet
of 202 pages, not including the index, to present them,
together with such arguments pro and con as were
filed. How many of you- would have time to study
such a document even though you had six months for
it? And having the time how many of you would feel
competent to pass on such a measure as the judiciary
amendment, for example? The Oregon supreme court
has experienced some difficulty in construing amend-

205
THE INITIATIVE, REFERENDUM AND RECALL

ments to the constitution made in the above manner,
particularly those adopted under the initiative in 1906
and intended to take from the legislature the power to
enact, amend or repeal municipal charters and giving
this power to the voters of the municipalities. These
amendments failed to define what constitutes a char-
ter; there were practically no precedents and the su-
preme court found it necessary to amend these consti-
tutional amendments by its decisions, by supplying
omissions and by interpolating provisions not contained
in the amendments themselves.

But what becomes of the sacred right of the initia-
tive and the doctrine that the people are always right?
Should a supreme court amend or set aside what the
people in their wisdom (or unwisdom) have perpe-
trated? So it has come to pass that the initiative
amendments of the Oregon constitution, adopted to
give the people absolute power, do not really make the
people supreme, but do make the acts of the people,
plus the supervision of the supreme court, supreme.
Certainly to this extent the initiative is not what its ad-
vocates intended it to be, although there is a large
element of safety in such supervision and amendment
by the supreme court. But what would be the result
if the supreme court had held that the people had all
the final power subject only to contrary provisions in
the constitution of the United States? ;

Briefly to summarize, then, we find that the so-
called “ reserve’? power is greatly abused; that meas-
ures in overwhelming numbers and many of them

296
UNFAVORABLE RESULTS IN OREGON

loosely drawn are being put upon the ballot; that the
percentage of those who do not participate in direct
legislation is increasing; that lack of intelligent grasp
of many measures is clearly indicated; that legislation
is being enacted by minorities to the prejudice of the
best interests of the majority; and that the constitu-
tion itself is being freely changed with reckless disre-
gard of its purpose and character.

20
THE RECALL
CHAPTER XII
THE USE OF THE RECALL IN THE UNITED STATES.!

THE recall expresses the idea that a public office is
so vitally affected with the public interest that when
its occupant ceases to perform his duties to the inter-
ests of the community his official tenure may be ter-
minated. The recall is based on the theory that the peo-
ple must maintain a more direct and elastic control over
their elective officials, or, to use a homely Oregonian
phrase, that the people should be able to discharge
their public servants “‘ just as a farmer discharges his
hired men.” ?

 

1Mr. Herbert S. Swan of Columbia University, the author of
this chapter, is one of the committee investigators of the National
League.

2 Contrary to popular belief the recall did not have its origin in
Los Angeles in 1903. It was first embodied in the Articles of Con-
federation which reserved to the individual states the right of recall-
ing any or all of their delegates to Congress and of sending others
in their stead. Although both Madison and Yates are silent in their
reports concerning it, the recall no doubt was thoroughly discussed
in the Federal Convention especially in regard to the recall of sena-
tors. Luther Martin in his “Genuine Information” to the Mary-

208
USE OF THE RECALL

A man who breaks a contract or who deceives his
clients by making false pretenses is severely punish-
able by our laws. But electorates may be wheedled
and seduced, the public troth most atrociously outraged
by insidious officeholders—all without redress, so long
as no technical crime has been committed. Impeach-
ment reaches only malfeasance, not misfeasance or
non-feasance. There is a borderland outside of actual
graft which the law of impeachment does not touch.
Our statutes, as a rule, are not so framed as to cover
the George Washington Plunkitt variety of “ honest
graft.” In instances of this sort the courts are power-
less,

-An English cynic once suggested that since moral
perversity seemed to be the legislator’s only infallibil-
ity, good government might be readily achieved by in-
verting the laws in their administration. Though expe-
rience may give this theory more or less credence, the
recall, however, is based upon the assumption that the
official’s interest can be conjoined with that of the peo-
ple’s by making his tenure dependent upon his con-
stantly meriting the office. What has annoyed and
thwarted more than anything else, might be called of-
ficial aphasia. Just when the people have elected a
man burning with patriotic zeal, he suffers some sort

 

land legislature strongly opposed the adoption of the constitution
because it omitted this feature. The principle also aroused a long
and intensely interesting debate in the New York Convention. The
two Livingstons, John Lansing, and Alexander Hamilton engaged
in the controversy.

299
THE INITIATIVE, REFERENDUM AND RECALL

of an intracerebral accident. He is no longer able to
interpret vox populi. His memory fails him. His
formerly clear-cut views upon public questions become
confused and incoherent. Party platform and pre-
election pledges now mean nothing, or, if they do,
something very different from what they appeared to
mean a short time ago. The ayes and nays in the legis-
lative journal, when read in the glow of his former
zest for public service, appear unintelligible, sometimes
villainous. The recall proposes to aid the officeholder
in retaining a candidate’s state of mind.

Nor is there any valid reason why a man honestly
elected upon a platform which he honestly intends to
carry out, should not, under certain circumstances, be
recalled. Even though the representative’s views
might approximately at the time of election have re-
flected those held by the represented, rising contingen-
cies might tend to disturb and unbalance the intimacy
of this relation. Conditions entirely unforeseen then
might develop which would render a change of policy
imperative. Surely legislators and councilmen ought
to be amenable to changing, as well as to existing,
public sentiment. The finiteness of human foresight,
not less than the fallibility of the electorate’s choice
and the corruptibility of the official, aneurs for the re-
call in a popular government.

In passing upon the constitutionality of the Iowa
law providing for city government by commission the
court said in reference to the recall: “ Public officers
are created in the interests of the general public, and

300
USE OF THE RECALL

not for the benefit of any individual. And no one in
possession of an office has a constitutional right to re-
main therein for the full period of the term for which
he was elected. . . . As no contract right exists
in favor of the incumbent of an office it does not re-
main for him to quarrel with the method of procedure
adopted in removal from office.”

The recall is perhaps most valuable as a potential
club to wield over recalcitrant officials. Without it,
public opinion, no matter how well it may be organ-
ized, loses one of its most potent weapons with which
to inspire honest and efficient government. An inde-
terminate tenure of office, for such the recall may be
said to conduce, places a premium upon good service.
Disrespect or indifference to the public will may be
punished by a summary ejectment from office. A def-
inite term doubtlessly makes the councilman more in-
imical to crystallized public opinion. He may, or may
not, give it speedy expression in the enactment of de-
sired ordinances. In either case he feels tolerably
secure of his seat.

Threatening the use of the recall has on several
occasions caused councilmen to abandon measures ob-
jectionable to their constituents. A case in point is
where the Los Angeles aldermen rescinded an im-
mensely valuable franchise in a river bed in that city.
Another instance illustrating its worth in this respect
occurred in Des Moines. “ When the matter of ap-
pointing police marshal came up, three of the council
voted for a man who had worked to secure their elec-

301
THE INITIATIVE, REFERENDUM AND RECALL

tion. The appointment was opposed by two of the
councilmen, one of whom had charge of the depart-
ment of public safety. Unwittingly one of the three
above mentioned who voted for this appointment
dropped some remark which led the public to believe
there had been a promise made before election. This
suspicion was furthered by the fact that the council-
man in charge of the department of public safety op-
posed the appointment. A petition for a recall of the
councilman making the unfortunate remark was at
once started. Before this reached the council, how-
ever, that body had had a meeting and quickly revoked
the appointment and appointed a police marshal who-
had public favor.”

The charge urged against the recall that it may
be invoked to displace conscientious officials is not to
be given much weight if proper precautions are taken
in fixing the percentage required on the recall petition
sufficiently high so as to remove the officeholder from
factional spite. The malignant and wanton exercise
of the recall in displacing or harassing conscientious
officials would so arouse the public condemnation that
the measure could not help falling through. This,
moreover, has been the actual experience of the recall.
In Fort Worth, Texas, an attempt was made to re-
move a commissioner who had enforced the law in the
“red light” district. The law-abiding people unani-
mously rallied to his support, and his enemies failed
to obtain the necessary per cent. petition to force him
to stand for reélection. When the police superintend-

302
USE OF THE RECALL

ent of Des Moines, Iowa, suppressed gambling, repre-
sentatives of that interest visited him at his office and
told him that if he did not permit the reinstallment
of slot machines a recall would be started to remove
him. The superintendent immediately had the inci-
dent printed in the newspapers and the recall did not
materialize.

In San Bernardino, California,two councilmen who
voted for letting the public advertising to a firm not
the lowest bidder were summarily ousted by their con-
stituents. In San Diego, a councilman, whose conduct
“ever since he entered upon the duties of said office
had been in opposition to the will and preference of
his constituents, and obstructive to the best interests
of the city,” came within an ace of being recalled. He
was spared the disgrace only by resorting to the courts
which delayed the proceedings until his term expired.
The recall was exercised against a councilman in Ever-
ett, Washington, who was “ using the influence of his
position to revive a certain franchise to the prejudice
of the city.” In Los Angeles, Mayor Harper was re-
called a little over a year ago for failing to enforce
the law against gambling, prostitution, and the sale of
liquor. In Oregon the recall has been used twice.
All the elective city officials except one, the recorder,
were removed a year ago last spring at Estacada. The
charge made was gross mismanagement of the city
business. At Junction City the mayor had a few weeks
earlier been recalled by a vote of four to one. Last fall
two school directors were recalled in Dallas, Texas,

303
THE INITIATIVE, REFERENDUM AND RECALL

on the ground of discharging teachers and appointing
others in their stead because of political motives. Only
recently the mayors of Seattle and Tacoma, Washing-
ton, have been recalled. In the former city, it was
alleged that the executive failed to enforce the police
laws “ permitting the city to become a home and ref-
uge for the criminal classes”; in the latter, the cause
of recall was found in general inefficiency and gross
mismanagement of public business.

There ought, perhaps, to be an initial period of
some two or three months during which a newly
elected commissioner should be immune from the lia-
bility of recall. This would not only give a council-
man a chance to outline his policies, but would also
give time for the partisan ill-feeling aroused during
the campaign to cool. But the entire history of Amer-
ican politics precludes scoring any point for the short
time exemption on the latter ground. Politically our
candidates are game losers. To bolt the party ticket,
no matter what the merits or demerits of the case, has
universally been regarded as a cardinal sin. The mug-
wump has always been ostracised. No doubt custom
would execrate the would-be-post-election guerilla,
who has just been disappointed in his office-seeking
hopes, as a most abominable enemy to the people.

In most cities a recall may be effected at any time
during the officer’s term. Yet in several instances it
is provided that no proceedings may be brought
against an incumbent during the first three or six
months. In Boston, where the mayor now holds office

304
USE OF THE RECALL

for four years, a recall may only be had after two
years by the majority of the voters. St. Joseph al-
lows no such election to be held ‘“‘ within three months
after the election and qualification of any city officer,
nor within three months prior to the expiration of his
term of office.” Instead of prohibiting proceedings
against an officer near the end of the term thus, some
charters permit the council discretion to refuse action
if a general election occurs within sixty days. Lewis-
ton, Idaho, is the only city that expressly denies the
filing of more than one petition during an officer’s term.
In Oregon no petition may be circulated against any
state officer “until he has actually held his office six
months, save and except that it may be filed against a
senator or representative in the legislative assembly at
any time after five days from the beginning of the first
session after his election. After one such petition and
special election no further recall petition shall be filed
against the same officer during the term for which he
was elected unless such further petitioners shall first
pay into the public treasury which has paid such special
election expenses, the whole amount of its expenses for
the preceding special election.”

To absolutely prohibit proceedings several months
prior to the term’s end tends to make the recall nuga-

 

1 The recall in Oregon applies also to the judiciary. The Arizona
constitution is modelled after that of Oregon in this respect. Cali-
fornia will in October vote on a constitutional amendment extending
the recall to every department in the state government including the
judiciary. :

305
THE INITIATIVE, REFERENDUM AND RECALL

tory in remedying the evils for which it is instituted.
This objection applies still more emphatically to the
Lewiston charter, which specifically limits an officer’s
liability to one time. The discretion resided in the
council as to the warrantableness of such drastic action
ought to be made so elastic as to empower that body
to refuse relief if a general election is only a short time
distant.

So long as the voter may not at any time recall his
chosen representatives his franchise is only a remnant.
The right to elect and the right to recall—each comple-
ments the other. <A full and complete electoral fran-
chise includes both. A suffrage embracing one but not
the other is fragmentary and only putatively demo-
cratic. The recall will lend some purpose to political
discussion. At present it is insipid, meaningless. Men
regularly go in and out of office by fixed batches—
their tenure, instead of bearing any relation to dynamic
political conditions, is, in the words of Bagehot, “ rigid,
specified, dated.” Nothing can be accelerated, nothing
retarded. What business is there at present in atten-
tion to politics?

There is little danger of the recall being used too
often. As Mr. Davis has indicated in the Proceedings
of the National Municipal League for 1906, it is far
easier to get a man to sign a petition for than against
a person. And there is need to be wary. In signing
a petition making untruthful charges, the elector ren-

 

1See below p. 317.
306
USE OF THE RECALL

ders himself susceptible to a criminal libel suit. The
experience: in Los Angeles has been that more than
twice as many people are willing to vote for removal
of an officer when it comes to the recall election than
are willing to sign the petition. The percentage of
signatures required on the petition should therefore
not be too high—twenty-five per cent. being in all or-
dinary conditions adequate. Thirty-five, forty per cent.
clearly annuls its use.

The percentage of signatures required on the peti-
tion is twenty in St. Joseph, Fort Worth, Grand Junc-
tion and Berkeley; twenty-five in Iowa, Kansas, Ore-
gon, Austin, Texas, and Lewiston, Idaho; thirty in
Colorado Springs; and thirty-five in Dallas, Texas, and
Tulsa, Oklahoma. In some of the non-commission
cities in California it rises as high as forty, fifty-one
and even sixty per cent. The sagacious statesmen in
the Illinois legislature last year fixed the percentage
for that state at seventy-five. The basis on which the
percentage is reckoned varies greatly in the different
cities. In Los Angeles the standard taken is “ the vote
cast for all candidates for the office at the last general
city election.” In Iowa, it is “the entire vote for all
candidates for the office of mayor at the last preceding
general municipal election”; in Fort Worth, “ the en-
tire number of persons entitled to vote in said city at
said time”; in Grand Junction, “the last preceding
vote cast for all the candidates for governor of the
state of Colorado by the electors of the city”; in Bos-
ton, “a majority of the qualified voters registered in

307
THE INITIATIVE, REFERENDUM AND RECALL

said city for state election”; in Oregon, “ the electors
who voted in his district at the preceding election for
justice of the supreme court.”

If the office which usually receives the least total
vote be taken as the basis for the recall petition, the
same result is arrived at as if a low percentage of sig-
natures were required in order to effect a recall. The
fairest test would probably be the total number of
votes cast for the office in each particular instance.
But whatever office be taken as a standard, the recall
should in the election of that one incumbent encourage
a very heavy poll because every “ stay-at-home ”’ vote
in that one election would potentially depreciate and
jeopardize the permanence of all other official tenures
by just so much facilitating a possible recall in the
future. If the basis for the recall petition for each of-
fice, however, be its own total vote at the last preced-
ing election, then, theoretically, all offices ought uni-
formly to poll a heavy vote.

Generally, only one election is sufficient to decide
whether the incumbent is to continue in office, and, if
he is removed, who is to succeed him. But in some
cities, of which Dallas, Texas, Tulsa, Oklahoma, and
Tacoma, Washington, are instances, something similar
to the French ballotage and identical with the German
engere Wahl has been adopted—that is, if more than
two candidates run for an office and none receives an
absolute majority of all the votes cast, then this elec-
tion serves only as a primary to a supplementary elec-
tion in which only two candidates, the ones receiving

308
USE OF THE RECALL

the highest and second highest number of votes at the
primary, are the competitors.

When Tacoma, Washington, recalled her mayor,
last spring, there were in addition to the officeholding
mayor two other candidates for the office. Though
sixty-two per cent. of the voters in this first election
indicated that they desired a change in the mayoralty,
they were not unanimous in their choice as to the in-
cumbent’s successor, forty-five per cent. voting for one
candidate and seventeen per cent. for another. Even
though Mayor Fawcett had obviously lost the public
confidence, since he received only thirty-eight per cent.
of the total vote polled, he was permitted through this
proviso in the Tacoma recall to stand for still another
election, the first being now considered merely a pri-
mary. The people, however, again repudiated him,
and elected his opponent.

Aside from these few cities, the people are spared
and expense of a second election since a plurality is all
that is needed to elect a successor to the one recalled.
To this there is but one exception, that of Austin,
Texas. There a practice more peculiar than the one
just described exists—a practice no doubt devised by
designing politicians in order to bring the recall into
great disfavor, if not to render it altogether inopera-
tive. In Austin the bare issue of recall is first pre-
sented to the people at a special election when it has
been so petitioned by the necessary percentage of
voters. If they decide in favor of a recall at this elec-
tion, the office is summarily declared vacant and the

309
THE INITIATIVE, REFERENDUM AND RECALL

incumbent is forbidden to be a candidate to succeed
himself. His successor is then selected by the method
used in Tacoma. The clumsiness of the Austin char-
ter necessitates never less than two elections, and
sometimes, when an absolute majority of the voters
are disunited and refuse to support some one candi-
date, three elections are necessary in order to recall
an official.

The successor to the one removed usually holds
office only during the unexpired term. Boston is the
sole exception to this rule. There, at the general state
election in the second year of the mayor’s term, the
question is submitted to the voters whether they wish
a new election for mayor to be held at the city elec-
tion in the following January. If a majority of the
registered voters answer this question in the affirma-
tive, such an election is held. If a new election is
held; it is for a four-year term, with a similar power
of recall in the second year. Cases where the recalled
officer is afterwards publicly discriminated against are
not altogether wanting. Berkeley, California, was the
first to prohibit one who has been removed, or who has
resigned while such proceedings were pending against
him, from being appointed to any office within one
year. Other cities, such as Grand Junction and Colo-
rado Springs, Colorado, have copied this provision into
their charters word by word.

The city clerk is almost without exception allowed
extra help by the council in examining the validity of
the signatures. The charter of Lewiston, Idaho, some-

310
USE OF THE RECALL

what differently from the Oregon law, provides, how-
ever, that such extra help, not exceeding in cost the
sum of one hundred dollars is to be paid by the peti-
tioners who shall deposit the sum necessary with the
city clerk at the time of filing the petition. Any sur-
plus in the amount deposited over and above the ex-
pense incurred shall be returned to the persons by
whom the same was deposited. With this exception,
and all elections held against an official in Oregon sub-
sequent to the initial one, the cost incident to the re-
call election is made a public charge.

The strongest case against the recall is, perhaps,
its expensiveness. In a large city the size of New
York or Chicago, it probably would be prohibitory. In
Los Angeles the cost incurred through its exercise is
said to have been nine thousand dollars, a sum the Cal-
ifornians considered a mere bagatelle compared to the
benefits derived from its exercise. The wisdom of
having the petitioners stand the cost of certifying and
verifying the signatures as in Lewiston, Idaho, is open
to serious doubt. In some states it certainly would be
held unconstitutional for being a new and additional
qualification for the exercise of the suffrage. It vir-
tually constitutes a property qualification upon the
right to vote.

The recall is of special significance, since if it
prove practicable, and this its limited experience seems
to promise, it may become the means of a most salu-
tary improvement in municipal government—the
lengthening of the term for elective officials. Its in-

3II
THE INITIATIVE, REFERENDUM AND RECALL

corporation into city charters has already shown a
movement in this direction. Berkeley and San Diego,
California, Colorado Springs and Grand Junction, Col-
orado, have extended the term of the councilmen, or
commissioners, to four years. Tllinois, also, provides a
four-year term; South Dakota a term of five years.
Where the recall has been introduced it seems to be
expected that public opinion will supersede the need of
actual voting. There can be no doubt that all super-
fluous elections, and hence all needlessly short terms
of office, complicate politics and weary the elector.
CHAPTER XIII

THE RECALL AS A MEASURE OF POPULAR CONTROL

In an address at the Atlantic City meeting (1906)
of the National Municipal League Thomas A. Davis
contributed this discussion.

Before election candidates as a usual thing are pro-
fuse with promises, but it is remarkable how quickly
after being elected these promises are forgotten and
how the wishes of the people are thrown to the winds.
Instead of conducting municipal, county and state gov-
ernments for the people, in many cases we are forced to
the conclusion that the meimbers of these public bodies
elected by the people even sit there as the paid repre-
sentatives of private interests, while-the public treasury
is looked upon as the proper thing to be robbed and
plundered.

As a usual thing candidates are elected or appointed
to public office for terms ranging from one to five
years. After they have been inducted into the office,
no matter how shameful or degrading their conduct
may be, there is not at the present time any adequate
manner in which the public can call to account an err-
ing public servant. The public servant becomes the

21 313
THE INITIATIVE, REFERENDUM AND RECALL

public master for the balance of his term, and in many
cases we have seen these acts of a man committed dur-
ing his term forgotten when his term is about to ex-
pire, and the person reélected to the office with perhaps
an increased majority. Of course, such an occurrence
as this is due to apathy and indifference of the electors,
and so long as they are willing to remain in that state,
they probably get about as good government as they
deserve.

If a man employs an agent for a term of years by
contract, and that agent betrays his principal, the prin-
cipal may terminate the contract and get rid of the
faithless one. Officeholders stand in the same position
to the public as the agent does to the principal. They
are simply the instruments for carrying on the business
of the public, and if they are faithless in performing
their duties the law should provide adequate means
for getting rid of them and putting others in their
places. This thought no doubt has been in the minds
of people for a long time, but it was not until such
a method of procedure, which has been designated the
recall, was put into effect in Los Angeles, California,!
that this section of the country came to the conclusion
that their theories had materialized in the Far West,
and an agitation has been accordingly started to con-
sider the advisability of such a law in New Jersey.

The recall is a method by which it is possible for

 

1 See the paper of Charles D. Willard on Los Angeles in the New
York volume of Proceedings of the National Municipal League for
further references to the recall.

314
A MEASURE OF POPULAR CONTROL

the public to free itself from incompetent and objec-
tionable officials. As outlined in the Los Angeles stat-
ute the law applies to elective officers. If the public
wishes to vacate the office of an objectionable official,
a petition must be signed by twenty-five per cent. of
the entire vote for all candidates for that office, de-
manding the election of a successor to the officer
sought to be removed. The petition must state the
grounds upon which the removal is sought. The sign-
ers must put their addresses after their names and the
whole petition shall be verified by the oath of at least
one person who saw all of the others sign. The peti-
tion, thus verified, is filed with the city clerk, who
within ten days after filing examines it for the pur-
pose of ascertaining if the necessary number have
signed, and issues a certificate as to his finding. If
he finds the petition insufficient, it may be amended in
ten days after the issuance of his certificate. If still
insufficient after such amendment, it is returned to the
petitioners without prejudice against the filing of an-
other petition. If the petition is found by the clerk to
be sufficient, he issues his certificate to the municipal
governing body to that effect. The governing body
shall then order an election to be held within not less
than thirty days and not more than forty days from
the date of the certificate. The election shall be con-
ducted as other elections are conducted. The Los An-
geles statute provides that the person sought to be
removed may be a candidate to succeed himself, unless
he requests otherwise in writing, and unless he so

315
THE INITIATIVE, REFERENDUM AND RECALL

requests the clerk puts his name on the ticket as a can-
didate. If some candidate other than the incumbent
receives the highest number of votes he shall be elected
and serve for the unexpired time of the person com-
plained against, who shall be removed. If the incum-
bent receives the highest number of votes he shall con-
tinue in his office. These, briefly, are the provisions
of what is designated as the recall, and are a part of
the statute law governing the city of Los Angeles.

In the consideration of it here the first question
naturally would be, do we need it? It would appear
to me to be unnecessary to go into any extended argu-
ment to convince all present and all who are not pres-
ent that if the recall will do what the provisions that
I have stated allege, then we undoubtedly need it and
need it very badly, and have needed it for a great
many years. Probably there are very few here present
who have followed municipal, county and state affairs
in New Jersey who do not now conclude that had we
the recall in New Jersey in years gone by, and if things
then happened that have happened, the law would cer-
tainly have had to work overtime. Without particu-
larizing instances, we can recall to our minds cases
within our knowledge where the people of our own
neighborhoods would have welcomed it, in order to
rid themselves of officials not only incompetent, but
whom we believe to have yielded to the corrupting
influence of money.

The next question that might be asked is, is recall
fair to official and to people? In Los Angeles twenty-

316
A MEASURE OF POPULAR CONTROL

five per cent. of the entire vote for an office is required
to be signed to a petition before the machinery of recall
can be set in operation. Considering the fact that
for an ordinary office there may be from three to six
candidates, this percentage would certainly seem to be
large enough to remove the suspicion of unfairness,
because it is far easier to get a man to sign a petition
for a person than it is to sign one against a person.
Were the recall adopted in New Jersey the percentage
might not be fixed at twenty-five per cent.; it might
be more or it might be less. So far as the incumbent
is concerned, after the petition is filed against him he
still has the opportunity under the method of procedure
to vindicate himself, and if he makes no move at all
the law orders him put upon the ticket as a candidate
for reélection. It seems, therefore, that the provisions
are equitable in attempting to take care of both accused
and accuser.

Query might be made, is it not likely that the right
to petition might be abused and petitions filed without
just cause? I think we can safely say there would
be no danger of abuse of the right to petition. The
experience of those familiar with municipal bodies is
that even now the people of a neighborhood may tol-
erate an abuse of their rights for a considerable time
before petitioning their local governing bodies for a
correction of the abuse. Again, if the percentage of
the electors required to sign is made, for example,
twenty-five per cent., it would be impossible to pro-
cure such a number of signers unless the petition was

317
THE INITIATIVE, REFERENDUM AND RECALL

based upon justice. Publicity and public opinion are
the great influences in our country to-day, and when
the movement to put into operation the machinery of
recall is begun, it must receive the approval of the
people or it will absolutely fail.

We have in the state of New Jersey to-day a law
which permits a small number of taxpayers (twenty-
five) to petition a supreme court justice for the ap-
pointment of a commissioner to investigate municipal
and county affairs. The number of signers required
is so small that it might be easily abused, yet all we
have to do is read the newspaper accounts of such in-
vestigations to be convinced that in every case where
application was made and a commissioner appointed,
the investigation should have been carried on.

There is one provision of the Los Angeles plan
which, to my mind, should be enlarged upon if the
state of New Jersey is to adopt the plan of recall.
The Los Angeles plan apparently applies only to elec-
tive municipal officials. I can see no good reason, if
we should ask for the enactment of a statute, why it
should not be embodied in a general law and why
officials affected should not be municipal, county and
state officials, both elective and appointive.

In the municipalities to-day there are very few
officials elected outside of the mayor, the governing
body, and the board of education. Practically all the
other officials, such as assessors, tax commissioners,
fire commissioners, police commissioners, boards of
health, boards of assessment, and city officials are ap-

318
A MEASURE OF POPULAR CONTROL

pointed either by the mayor or the governing body,
while in the counties and state there are innumerable
boards and officers that are not elected at all, but are
appointed by an officer or a body, which is itself
elected. It seems to me that the recall should not stop
as in Los Angeles at elective officers, but all officers,
boards or bodies, whether elective or appointive, should
be amenable to the public and it should be within the
power of the people to call them to task whenever their
conduct justifies it. The method of procedure out-
lined in the Los Angeles statute covers the point as
to elective municipal officers. Of course, if we go be-
yond this and embrace municipal, county and state
officials, elective and appointive, the modus operandi
would have to be framed to suit the case.

It is rather difficult to say, without discussion and
consideration, what method of procedure should be
adopted to bring the provisions of recall to bear upon
an appointive officer. The Los Angeles provisions will
not apply. This is a question that might well be dis-
cussed until a proper plan is adopted, if the suggestion
appears to be a proper one. It seems to me that in the
case of an appointive officer the petition to be signed
by a certain percentage or number of taxpayers should
be presented to the appointing power in the shape of
charges, and the appointing power should either place
the accused on trial before itself upon the charges, or
appoint a commission, outside of its own number, to
hear the charges and conduct the trial. If the accused
is found guilty that should terminate his right to hold

319
THE INITIATIVE, REFERENDUM AND RECALL

the office, and if not guilty he should be allowed to
continue therein.

In the last session of the New Jersey legislature,
two bills prepared by a committee of the New Jersey
Civic Federation were introduced, attempting to put
the recall into effect in the state of New Jersey. The
bills were known as Senate Bills Nos. 169 and 170.
They were referred to a committee but were not en-
acted into laws. It was hardly expected that the bills
would be enacted into laws at the session at which
they were introduced, but the purpose of having them
prepared and introduced was to attract the attention of
the public, and induce discussion on the recall principle.
Several societies have already discussed the subject,
and it is hoped that it will be widely discussed before
another legislature shall meet, at which time the pas-
sage of a recall law will be urged with the expectation
that such a law will find its way into the statute books
of the state of New Jersey.
CHAPTER XIV

THE RECALL IN LOS ANGELES !

In the autumn of 1899 the citizens of Los Angeles,
believing that their charter (adopted in 1889 when
the municipality had scarcely reached the proportions
of a good-sized town) had become inadequate to meet
the newer conditions, elected a board of freeholders
for the purpose of drafting a new charter. When
this body had nearly completed its draft, however,
the supreme court of California decided, upon a tech-
nical point, that the board was not legally consti-
tuted, and its draft could not be submitted to the
people. When a new board was chosen, however,
much of the work done by its predecessor was util-
ized, and in 1902 the voters were given the oppor-
tunity of passing upon a new charter which contained,
among other novel provisions, an arrangement for
the recall of elective officers. After the adoption of
the charter at the polls it went before the state legis-

 

1A summary of an article by Charles Dwight Willard, secretary
of the Los Angeles Municipal League, in La Follette’s Magazine, Au-

gust 7, 1909.
321
THE INITIATIVE, REFERENDUM AND RECALL

lature for ratification, and there a vigorous opposition
to the recall feature was encountered. For a time
it appeared as though this provision might be elimi-
nated. The precedent, however, was for the un-
conditional acceptance of all charters which had
been endorsed by the voters of a city and the
legislature did not, in the end, venture to depart from
this.

After the final adoption of the new charter in
1903 it was not long before the recall provision was
put into active use. The city council of Los Angeles
was at this time made up mainly of machine polli-
ticians, who derived much of their strength from the
aggressive support of a Republican newspaper. When
the contract for the city’s printing was about to be
awarded it was found that the proposal made by this
newspaper was about $15,000 above that made by the
lowest bidder,—an independent journal. Neverthe-
less, the council awarded the contract at the higher
figure.

It happened, however, that the newspaper which
secured the contract was an aggressive antagonist of
the local labor unions. It was conducted on the prin-
ciple of the open shop. The labor leaders, accordingly,
opened a campaign of protest against the award, and
in due course took steps to secure the recall of a coun-
cilman from the sixth ward of the city. This coun-
cilman had voted for the award, although a large
number of workmen voters were enrolled in his ward.
The necessary signatures for a recall petition (twenty-

322
THE RECALL IN LOS ANGELES

five per cent. of the votes polled at the last election)
were secured and a recall election ordered. An oppos-
ing candidate was secured and at the election won by
a very large majority.

The second use of the recall in Los Angeles
brought the voters of the whole city and not merely
those of a single ward into action. At the municipal
elections of 1906 there was a strong sentiment in Los
Angeles that the government of the city should be en-
tirely non-partisan, and an organization was created
to help bring this to pass. <A slate of candidates was
put in the field, and in addition to this there were, of
course, tickets put forward by the Republican and
Democratic party organizations. It happened that all
three candidates for mayor were well known and the
result of the election would have been very close had
not the Republican machine, in the closing days of the
campaign, thrown its strength to the Democratic can-
didate, thereby electing the latter. The mayor-elect
was Mr. A. C. Harper, an officer in one of the largest
Los Angeles banks and a business man of excellent
standing. He was duly installed in office and began
with the advantage of a general popular impression
that he would conduct a highly successful administra-
tion, notwithstanding the methods used by party lead-
ers to secure his election.

But events soon dispelled this illusion. The appoint-
rhents which Mayor Harper made during his first year
in office were of a poor type, and rumors that the
mayor was shielding wrong-doers from the enforce-

323
THE INITIATIVE, REFERENDUM AND RECALL

ment of the laws were soon in currency. Matters came
to a head when the city prosecutor, Mr. T. L. Wool-
wine, made newspaper attacks upon the mayor and
several of his officials, charging them with the protec-
tion of vice. Newspapers printing the charges were
at once sued for libel. But before the matter could
be threshed out in the courts the Municipal League
of Los Angeles held a meeting and, after full discus-
sion, instructed its executive committee to undertake
the circulation of a petition for the mayor’s recall.
Eight thousand certified signatures were necessary;
but within a fortnight eleven thousand had been se-
cured, and an election was ordered.

Some difficulty was experienced in securing a can-
didate to take the field against Mayor Harper, but Mr.
George Alexander, who had been for a number of
years county supervisor, was prevailed upon to under-
take the leadership of the anti-Harper forces. Before
the election came on there were some additional dis-
closures concerning Mayor Harper’s connection with
wrong-doing, and upon the publication of these he de-
cided to resign. This action was taken two weeks be-
fore the day set for polling. The council which, un-
der the charter, had the right to fill vacancies, chose
a mayor pro tempore, and the election was allowed to
proceed.

The only remaining name upon the official ballot,
in addition to that of Mr. Alexander, was the name of
Mr. Fred C. Wheeler, a candidate put forward by the
Socialists. The Harper supporters now threw their

324
THE RECALL IN LOS ANGELES

strength to Mr. Wheeler, and made a vigorous attempt
to secure his election. They were not successful, how-
ever, and Mr. Alexander won by a majority of about
1,600 votes. The consensus of opinion is that he
made a successful mayor; he was renominated and re-
elected at the two succeeding elections.
CHAPTER XV

THE RECALL IN SEATTLE?

On March 6, 1906, the voters of Seattle by a ma-
jority of 8,047 out of a total vote of 10,577 wrote
into the city charter the provision for the recall of
all elective officers of the municipality.

The process is simple. “A petition signed by
voters entitled to vote for a successor to the incum-
bent, equal in number to at least twenty-five per centum
of the entire vote for all candidates for the office, the
incumbent of which is sought to be removed, cast at
the last preceding general municipal election, demand-
ing an election of a successor of the person to be re-
moved ” must be filed with the city clerk. This peti-
tion must bear ‘“‘a general statement of the grounds
for which removal is sought.” “ The signatures need
not be appended to one paper, but each signer shall
add to his signature his place of residence, giving the
street and number.” “ Any person competent to make
affidavit may circulate” the petition and “ shall make
oath before an officer competent to administer oaths
that the statements therein made are true, and that

 

1 By Fred Wayne Catlett, secretary to the mayor of Seattle.
326
THE RECALL IN SEATTLE

each signature to the paper appended is the genuine
signature of the person whose name purports to be
thereunto subscribed.” Ten days are allowed the city
clerk to check the signatures with the poll books. In
any case he must attach a certificate “ showing the
result of the examination.” If this certificate shows
the petition insufficient, ten days are allowed for the
filing of a supplementary petition. Ten days more
are given the clerk to check this petition. If insufficient,
the whole petition is returned to the person filing it
“without prejudice to the filing of a new petition.”
If a petition is found “ sufficient,” the clerk must so
certify to the city council at once, and it must set the
date for the election “not less than thirty days nor
more than forty days from the date of the clerk’s cer-
tificate.” All the ordinary steps to hold an election
are taken. The incumbent’s name is placed on the bal-
lot ‘unless he requests otherwise in writing.” The
candidate receiving the highest number of votes is
chosen to serve out the remainder of the incumbent’s
term.

That is the whole of the “ recall” charter provis-
ion. At its first trial it was discovered that it provided
no method of nominating opponents of the incum-
bent. Fortunately the state legislature was in session
at Olympia, and an act known as chapter 2 of the Ses-
sion Laws of 1911 was rushed through as an emer-
gency measure, providing for nomination by petition
signed by electors equal in number to not less than
five per cent. of the total vote cast for the incumbent

327
THE INITIATIVE, REFERENDUM AND RECALL

against whom the recall is directed. Each elector
signs his place of residence, his business, and his ad-
dress by street and number. This petition must be
filed with the city clerk ten days before the election.

A short time thereafter, to cure another defect,
chapter 6 of the Session Laws of 1911 was enacted,
granting each candidate the privilege of appointing
challengers at each polling place, one of whom is en-
titled to be within the polling place during the whole
time the polls are open.

In practice the recall has been operated as fol-
lows: Those favoring a recall of an officer have or-
ganized an association, collected funds, formulated cer-
tain very general charges of inefficiency, and malad-
ministration, printed many hundreds of petitions, and
placed them in the hands of anyone willing to take
them.

At the top of each petition is the general statement
of the charges, which may or may not have any foun-
dation in fact. In the attempted recall of Mayor Dill-
ing, precisely the same set of charges was used as in
the recall of Mayor Gill, though some of them seemed
inapplicable. Below the charges is the statement that
the signer is a voter entitled to vote for a successor
to the incumbent, and space for from ten to fifty
names. At the bottom is the oath required by the law
of the person taking the signatures. It is an “ im-
possible” oath, for it requires the passer of the peti-
tion to swear that the statements therein made, 7. e.,
that the signer is a voter, qualified to vote for a suc-

328
THE RECALL IN SEATTLE

cessor to the incumbent, that his residence is such
and such a street and number, are true, and that each
signature to the petition is the “ genuine signature of
the person whose name purports to be thereunto sub-
scribed.” Ina city of two hundred and fifty thousand
people, as a practical matter, no person passing a peti-
tion can honestly take such an oath to one name in
ten. As it is actually worked, petitions are placed in
the hands of many irresponsible people who indiscrim-
inately solicit signatures on the streets and in the office
buildings, ignorant in the great majority of cases not
only of the voting qualifications of the signer, but also
of the genuineness of the name and signature.

Some of this passing of petitions is done gratui-
tously, but much of it is also undertaken by paid solici-
tors—though sometimes paid by the day, more often it
is at so much per name, generally ten cents. This is
a great incentive to careless work on the part of the
solicitor and a cause of some irresponsible and thought-
less signing by voters. Any name which sounded like
the name of a real person counted for the ten cents,
and payment was necessarily made before the check-
ing by the city clerk. Solicitors, when asked why the
voter should sign, often replied, “Oh, I don’t know;
all I know is, that I get ten cents a name.” If the
voter had no settled convictions, he signed to be a
“good fellow and help along.”

As soon as the association having the matter in
charge thinks it has a safe margin of signatures above
the required number, it calls in the petitions and car-

22 329
THE INITIATIVE, REFERENDUM AND RECALL

ries them to the clerk’s office, where they are counted,
numbered and receipted for. The names on each peti-
tion are also counted and the total number of signa-
tures determined. If the total number is less than
twenty-five per cent. of the total vote cast for the office
at the “last preceding general election,” the petition
—for all the separate sheets are regarded as one peti-
tion—is not filed but returned to the association. The
presentation of a petition prima facie sufficient is juris-
dictional.

But if it is prima facie sufficient, the checking be-
gins. In practice in this city two or three checks are
made. On the first check all questionable signatures
are thrown out. On the second and third check, those
thrown out are reéxamined and many of them are
restored. The causes for the rejection of names are
no registration, illegible or forged signatures, improper
addresses, and, in the case of the women, signatures
with the initials of the husband. The parties inter-
ested always keep paid or voluntary workers to guard
the checking. Disputed names are referred to the
comptroller or his deputy for decision. If the dispute
turns on a question of law, the opinion of the corpora-
tion counsel is asked and followed. If the number
of genuine signatures exceeds the required twenty-five
per cent. the comptroller certifies it to the city council
as “ sufficient.”

If the number is found insufficient, the person fil-
ing the petition is notified and has ten days to make
up the deficiency. As only two filings are contemplated

330
THE RECALL IN SEATTLE

under our law, he and his association make haste to
collect all the signatures possible and file them before
the expiration of the time limit. This supplementary
petition is checked in the same manner as the original
petition. If it contains enough genuine signatures to
make up the deficiency, the comptroller certifies it as
‘sufficient’ unless before his certificate is made out
enough of the genuine signatures are withdrawn to
render it insufficient.

The recall law is silent about withdrawals, but a
decision of our state supreme court had affirmed the
right to withdraw names from an initiative petition,
and the corporation counsel advised the comptroller to
accept them in the case of the recall. Then the ques-
tion arose over the form of the withdrawal. Must the
request to withdraw a name be verified before a no-
tary as was the original signature? Where the with-
drawal was secured by personal solicitation, there was
no difficulty, but where the withdrawals came in by
mail, verification was a practical impossibility in many
cases. Our city comptroller agreed to count the postal
withdrawals if all were verified by the oath of the
person in charge of their collection that each card
had been received in due course of mail through the
United States Post Office, and that he believed the
signatures to be genuine. It is quite apparent that
this oath, also, furnishes no adequate safeguard
against fraud.

Seattle has given the recall two trials—very differ-
ent in character and result, thus serving to test the

331
THE INITIATIVE, REFERENDUM AND RECALL

law in many different respects. For the sake of clear-
ness, we may call the two trials, the Gill recall, and the
Dilling recall. The former was successful; the latter
unsuccessful.

The Gill petitions contained 11,418 names, of which
9,626 were termed genuine by the comptroller, a
shrinkage of sixteen per cent. Most of these petitions
were passed by responsible persons, and all were care-
fully checked by the Public Welfare League before
filing. As 8,671 names were enough, the petition was
certified “ sufficient.”

Just before the filing of the Gill petitions, the
women of Washington were enfranchised. Neither
this occurrence nor a second recall within the one term
of two years had been contemplated by the framers
of the recall law. The basis for determining the num-
ber of names necessary to institute it was “‘ the total
number of votes cast for the incumbent at the last
general municipal election.” A recall election is in
its very nature special; therefore, in the Dilling recall,
the vote at the Gill election became the basis for ousting
Dilling. The evident intent had been to require
twenty-five per cent. of the number cast at the time
the person to be recalled was elected, not the number
cast at the time his predecessor was chosen. But in
Mr. Dilling’s case the strict letter of the law permitted
the institution of the recall with 8,671 votes as before,
although at his election 62,322 votes were cast, of
which 15,581 is twenty-five per cent.

In the Dilling recall, the original petition contained

332
THE RECALL IN SEATTLE

10,254 names, of which 7,295 were declared genuine.
As this was insufficient, a supplementary petition of
2,617 names was filed, checking 1,753 as genuine.
This would have been sufficient by 377, had not 931
withdrawals been filed before the certificate was pre-
pared. Only 527 were checked because it was then
perfectly apparent that the petition was insufficient.
Had 15,581 names been necessary, the petition would
never have been dangerous. These figures show the
rejection of sixteen per cent. of the names on the Gill
petition, and thirty per cent. on the Dilling petition—
in spite of the stringent oath required from the solici-
tors of names.

The increase in the percentage of rejected names
in the Dilling petitions over the Gill petitions is due
largely to the careful checking of the latter by the
Public Welfare League before filing them with the
comptroller. The large number of names thrown out
has led some people to contend that the signing of the
petitions is not sufficiently safeguarded. The causes
for the rejection, however, hardly sustain this position,
for although a few fraudulent and forged signatures
were found, most of those thrown out were names of
women who had signed the initials of their husbands,
thus making it impossible to identify them, and the
names of men, not registered, or who had given in-
correct addresses which could not be corrected from
the records. When we consider how very careless
the majority of people are, even in the most serious
business affairs such as the signing of deeds, we need

333
THE INITIATIVE, REFERENDUM AND RECALL

not be surprised at the large percentage of rejected
signatures.

It has also been the idea of some people that there
was too much irresponsible signing. It is said that
“you can get people to sign any sort of a petition,
provided you don’t ask them for money.” This is
supported by the fact that upon solicitation 1,100
names were withdrawn from the Dilling petition after
it was filed. To my own mind this is not a serious
evil. The recall is a new political contrivance. Peti-
tions hertofore have in the main been harmless. The
people have to learn that now, in the case of the initia-
tive and the recall, petitions are serious. They mean in-
creased expense and, perhaps, all the disquiet of a
municipal campaign. For myself, I believe that this
evil will be less and less apparent as our voters become
more accustomed to the workings of these democratic
institutions.

Mention has already been made of the fact that
petitions were frequently passed by paid solicitors with
every incentive to careless work. But the task of col-
lecting the signatures of twenty-five per cent. of the
voters is so big that it could seldom be accomplished
without paid assistance. Others object to the passing
of the petitions on the streets and in public places on
the ground that it parades our civic contention before
all our visitors. But where one person observes our
discord in that way, a thousand may read of it in our
newspapers.

So far we have been examining the various parts

334
THE RECALL IN SEATTLE

of the recall machinery separately. Let us now con-
sider how the recall law as a whole has worked in
Seattle.

For over four years the recall remained an unused
part of our charter. Then arose just such a situation
as, in my opinion, the recall was designed to meet. It
is not my purpose to portray in all its disgusting de-
tails the alliance between our police department and
the “vice syndicate.” To be sure, Mayor Gill was
elected on the platform of a restricted district, and
good citizens cannot escape all blame for his success.
But the circumstances surrounding his election afford
some excuse. His opponent at the primary, though
an able and worthy man, was of foreign extraction,
a poor talker, and a man who had the reputation,
whether deserved or not, of being unable to work with
other men. He had been dismissed from office by
Mayor Niller largely for that cause. For these reasons
he was not the man around whom all the opponents of
Gill could rally with enthusiasm. At the election Mr.
Gill was opposed by ex-Mayor William Hickman
Moore, a Democrat, and although Judge Moore ran
way ahead of his ticket, partisan politics carried Mr.
Gill into office. In accordance with his ante-election
promises, he established a “ restricted district,” but it
proved to be “ restricted” only in name. All kinds of
vice and crime flourished there under the protection
of the police. And the whole institution was in direct
violation of the criminal laws of the state. Gill had
also promised that there should be no open gambling.

335
THE INITIATIVE, REFERENDUM AND RECALL

It was not long, however, until gambling joints were
operating within a few blocks of the city hall—also
under the protection of the police.

One of Gill’s appointees was Richard M. Arms, a
former employee of the Seattle Electric Company, the
corporation which owns and operates most of our
street-car lines, and furnishes a large part of our light.
In the latter service it competes directly with our mu-
nicipal lighting plant. It was charged that Arms was
operating the municipal plant in the interest of the
Seattle Electric Company. While this was one of the
issues in the recall campaign, it was not the main issue.
The recall would never have been invoked except for
the alliance between the administration and organized
vice.

Our charter also provides a method of impeach-
ment of the mayor by a vote of two-thirds of the mem-
bers of the city council, but the council, as is likely to
be the case, would not act. It never has impeached
an officer in the history of the city. Impeachment be-
ing impossible, resort was made, therefore, to the re-
call for the first time.

The movement was started by an organization
known as the Public Welfare League. With great
energy the work of collecting the signatures was
pushed. Many thought the recall unfair and un-
American: that the voters had put Gill in and that
he was entitled to stay; that those who had not voted
for him, and those who did not vote at all should
“take their medicine.” A great deal of excitement

336
THE RECALL IN SEATTLE

and argument was necessary before the petitions were
finally filed, but filed they were.

A very bitter campaign followed. Behind Mr. Gill
lined up all the old politicians, all the saloon and
gambling element, the breweries, the pool-rooms, the
cigar stands, the habitués of the restricted district, the
liberal element, the men opposed to the recall “ on prin-
ciple,” and a good many of the so-called “ business
men.” On the cther side were the Public Welfare
League, the Municipal League, all the Protestant
churches, the various women’s clubs, and also a large
part of the influential business and professional men.
So great was the interest in the coming election that
with the aid of the women the registration leaped from
47,000 to over 72,000.

On election day 62,322 votes were cast (about one-
third being the votes of women), of which Dilling re-
ceived 31,919, Gill 25,705, and Brown, the Socialist,
4,608.

The new mayor adopted the policy of strict law
enforcement. The restricted district had been closed
by an injunction, and remained closed. Open gam-
bling was stopped. Wappenstein, chief of police, and
Arms, superintendent of lighting, resigned. A month
later every one of the Gill element in the council was
defeated. The alliance between the city government
and the vicious element had been most rudely shat-
tered.

Another important result of the election of Mr.
Dilling was that the recall was shown to be “ work-

337
THE INITIATIVE, REFERENDUM AND RECALL

able.” In the future its very existence should be a
deterrent to the dishonest elective official. But to make
it an effective deterrent, it had to be worked once.
Gill and his friends at first scouted the idea of a suc-
cessful recall; now the most hardened politician will
feel unsafe.

Some of the people of Seattle failed to realize that
the recall was an emergency measure, and another les-
son in its use was necessary to teach them that fact.

The direct cause of the attempt to recall Mayor
Dilling was his refusal to accede to the written demand
of a ‘Citizens’ Recall Association”? to remove from
office the head jailer, John Corbett. Charges of cruel
and inhuman conduct were made against him, practi-
cally all of them antedating the administration of
Mayor Dilling. The chief of police sustained Cor-
bett, and the mayor declared that no credible evidence
had been produced sufficient to justify him in requir-
ing the chief of police to dismiss him. If dismissed,
Corbett, as a civil-service employee, could have ap-
pealed to the civil-service commission and would have
been entitled to a trial by that body.

Certain reformers were also displeased by the
mayor’s veto of the anti-smoking bill, prohibiting
smoking on the street cars, and the anti-strap-hanging
bill, limiting the number of standing passengers in a
street car to fifty or sixty per cent. of the seating ca-
pacity and placing a penalty upon the company if it
failed to furnish an intending passenger with trans-
portation within the regular “ headway ” time.

338
THE RECALL IN SEATTLE

In these circumstances, the old Gill crowd saw its
chance, and proceeded to lend its strength to the recall
movement. The whole vicious element, together with
a number of well-intentioned men and women, signed
the petitions, which were duly filed some six or seven
weeks after the fight began.

Before going further, I should say that the Asso-
ciation had also attempted the recall of four of the city
councilmen—Blaine, Wardall, Kellogg and Steiner.
The Steiner petition was never filed. The other peti-
tions were filed, but not having the required twenty-
five per cent., even if all the signatures were genuine,
the filing marks were cancelled, and the petitions re-
turned to the Association.

The petition directed at Mayor Dilling contained
10,254 names. This total shrank to 7,295 on the third
check. The Association tried to make good the de-
ficiency within the ten days allowed by the charter.
Owing to peculiar circumstances this time was
stretched to twelve days including Labor Day and
election day, but with the advantage of these extra and
extraordinary days, the supplementary petition con-
tained but 2,617 names, reduced to 1,753 by the check.
As stated before, this was 377 more than enough. The
corporation counsel had ruled, however, that names
could be withdrawn, and on the faith of this, Mayor
Dilling’s friends had organized and secured about
1,100 withdrawals. Of these 931 were filed. As the
check of 527 showed clearly that the recall had failed,
the comptroller went no further with the count.

339
THE INITIATIVE, REFERENDUM AND RECALL

This second experience with the recall demonstrated
that although the recall is “ workable,” it cannot be
worked successfully except when there is serious cause
for it. Save for the peculiar wording of the charter
and the enfranchisement of the women after Gill’s
election, the Association would never have succeeded
in collecting anything like enough names. The fail-
ure of the second attempt put the necessary damper
upon those persons who thought they had only to start
a recall to make it a success.

Naturally public opinion in Seattle is divided over
both the principle of the recall and our own particular
recall law. I believe the majority favor the recall
principle and think it has fully justified its existence
in our city charter. Many friends of the recall prin-
ciple desire to see our law amended in various ways.
The daily press has informed us that the charter revi-
sion commission has approved the proposal of the
former corporation counsel by which the signatures
on the petition must equal five per cent. of the total
vote cast at the election at which the incumbent was
chosen before it is presented to the city comptroller.
The petition is then left in his office until ten per cent.
more have come in and signed. This plan reduces the
percentage required but makes it much more difficult
to sign. It throws much more security about the sign-
ing and does away with a great deal of the solicitation
of signatures. To make it more difficult will destroy
its value and relegate it along with the impeachment to
a shelf in the political garret. Without the recall, the

340
THE RECALL IN SEATTLE

people are helpless between elections; with it, and its
efficiency unimpaired, they always have in their hands
a power which can be exerted to bring to time an un-
faithful or incompetent public official. Seattle’s ex-
perience has amply demonstrated the utility of the
recall.
CHAPTER XVI
SOURCES AND LITERATURE

THE appended list includes references to only a
small part of the literature relating to direct legisla-
tion and the recall. An endeavor has been made to
list only such discussions as have contributed sub-
stantial arguments or trustworthy information bear-
ing upon either side of the question. Those which
the general reader would probably find most useful
have been indicated by an asterisk.

Bibliographies

Library of Congress. Select List of References on
Initiative, Referendum and Recall. Compiled by
H. H. B. Meyer. Washington, 1911. The best
arranged and most complete list yet issued. It
includes historical materials, books, pamphlets
and review articles.

Ohio State Library. Legislative Reference Depart-
ment. Initiative and Referendum. Compiled by
C. B. Galbreath. Columbus, igt1. A pamphlet
containing texts of constitutional provisions relat-

342
SOURCES AND LITERATURE

ing to direct legislation in various states; also a
useful list of books and articles.

Wisconsin Library Commission. Comparative Legis-
lation Bulletin, No. 21. The Initiative and Ref-
erendum. Compiled by C. H. Talbot. Madison,
IQIO.

Wisconsin Library Commission. Comparative Legis-
lation Bulletin, No. 12. The Recall. Compiled
by Margaret A. Schaffner. Madison, 1907.

These Bulletins contain accurate digests of the
laws and judicial decisions, with well-selected lists of
books and articles.

Books and Pamphlets

Barnet, James D. The Operation of the Recall in Ore-
gon. American Political Science Review, Vol.

_ Vi, pp. 41-53.

*Beard, C. A., & Shultz, B. E. Documents on the
State-Wide Initiative, Referendum and Recall.
New York, 1912. Contains all constitutional
amendments providing for a state-wide system
of direct legislation, several of the most important
statutes elaborating these constitutional provi-
sions, together with various constitutional amend-
ments now being submitted for adoption. Some
significant ‘judicial decisions are also included

343
THE INITIATIVE, REFERENDUM AND RECALL

and some data regarding the recall as applied to
state officers.

*Beard, C. A. Digest of Short Ballot Charters. New
York, 1911. A collection of city charters, chiefly
of municipalities which have adopted the com-
mission type of government. It is an extremely
useful compilation.

*Bourne, Jonathan, Jr. Popular vs. Delegated Gov-
ernment. A speech delivered in the United States
Senate, May 5, 1910. It is a summary of the
results of direct legislation in Oregon and a spir-
ited defence of the system.

Bradford, Gamaliel. The Lesson of Popular Govern-
ment. 2 vols. New York, 1899. Especially Vol.
ii, pp. 1839-201. An argument that direct legisla-
tion would prove an inadequate remedy for the
shortcomings of representative government.

Cleveland, F. A. The Growth of Democracy in the
United States. New York, 1898. pp. 177-241.
Some good historical data.

*Civic Federation of Chicago. Bulletin No. 3 (1911).
The Dangers of the Initiative and Referendum.
A pamphlet containing several addresses in oppo-
sition to the extension of direct legislation.

Dodd, W. F. The Revision and Amendment of State
Constitutions. Baltimore, 1910. An excellent
account, historical and critical, of the referendum
as applied to state constitutions.

Fabian Society. Tract No. 155. The Case Against
the Referendum. By Clifford D. Sharp. Lon-

344
SOURCES AND LITERATURE

don, 1911. A trenchant Socialist argument
against the reference of public questions to the
voters.

Frankenthal, L. J. The Initiative in Switzerland.
61st Congress, 1st Session (1909). Senate Doc-
ument, No. 126. A report on the initiative in
the Swiss Republic by the United States Vice
Consul at Berne (May, 1908).

Gilbertson, H. S. Conservative Aspects of the Recall.
National Municipal Review, Vol. i, pp. 204-211.

Godkin, E.L. Unforeseen Tendencies of Democracy.
Boston, 1898. Especially pp. 96-144. A sug-
gestive discussion by a far-sighted journalist.

Hardy, Arthur S. The Initiative and Referendum.
57th Congress, 2nd Session (1902). House Doc-
ument No. 1, pp. 482-494 (in Serial No. 4440).
A careful report on the workings of the initiative
and referendum in the Swiss Republic transmitted
by the American Minister to Switzerland (June,
1902).

Hartwell, E. M. Referenda in Massachusetts. Pro-
ceedings of the National Municipal League, 1909.
PP. 334-353. Deals chiefly with the amount of
public interest shown at referenda elections.

Kinkead, E. B. The Initiative and Referendum. Pro-
ceedings of the Ohio State Bar Association, 1907.
Vol. xxviii, pp. 145-185. An extended argument
against direct legislation.

Lecky, W. E. H. Democracy and Liberty. 2 vols.
London, 1896. Especially Vol. i, pp. 277 ff.

23 345
THE INITIATIVE, REFERENDUM AND RECALL

Legislation by the people in its historical relation
to democracy and popular freedom.

*Lobingier, C. S. The People’s Law. New York,
1909. An elaborate study of popular law-making
mainly historical. Chapter xxvi gives a useful
summary of the results of direct legislation in
America.

Lowell, A. Lawrence. Governments and Parties in
Continental Europe. -2 vols. Boston, 1896.
Especially Vol. ii, pp. 238-300. A study of the
practical working of the initiative and referendum
in the Swiss Republic.

MacDonald, J. Ramsay. Socialism and Government.
2 vols. London, 1909. Vol. 1. pp. 127-166. Dis-
cusses the problem of accurately representing pub-
lic opinion from the socialist point of view.

Mill, J. S. On Representative Government. New
York, 1905. Especially ch. iti—vii.

*Oberholzer, E. P. The Referendum, Initiative and
Recall in America. New edition, New York,
1911. A standard work, comprehensive in scope
and conservative in tone. Contains historical and
critical discussions of both the initiative and ref-
erendum.

*Owen, R. L. The Code of the People’s Rule. 61st
Congress, 2d Session (1910). Senate Document
No. 603. Especially pp. 101-129. A collection
of constitutional provisions, statutes and ordi-
346
SOURCES AND LITERATURE

nances which have been adopted as a means of
furthering the cause of popular government.

Parsons, Frank. The City for the People. Boston,
1900. Especially pp. 255-386; 505-527; 605-
629.

Phelps, E. M. Selected Articles on the Initiative and
Referendum. Wilson’s Debaters’ Handbook
Series. Minneapolis, 1909. A number of short
articles on both sides of the question. Bibliogra-
phy appended.

Pomeroy, Eltweed. Papers on Direct Legislation.
55th Congress, 2d Session (1898). Senate Doc-
ument No. 340 (in Serial No. 3615). A digest
of the principal arguments in favor of direct leg-
islation.

Post, Louis F. The Initiative and Referendum. Pro-
ceedings of the National Municipal League, 1906,
pp. 363-381. An outline of the development of
direct legislation in America.

Ringwalt, R. C. Briefs on Public Questions. New
York and London, 1905, pp. 50-52, 55. Con-
tains a summary of the chief popular arguments
for and against direct legislation. Of particular
value to debating teams.

Smith, J. A. The Spirit of American Government.
New York, 1907. A brief general survey of the
initiative, referendum and recall is contained in
chapter xiii.

*Stimson, Frederick J. Popular Law-making. New
York, 1910.

347
THE INITIATIVE, REFERENDUM AND RECALL

Sullivan, J. W. Direct Legislation through the Ini-
tiative and Referendum. New York, 1893. A
forceful presentation of the case for direct legis-
lation, now somewhat old, but still useful.

*U’Ren, W. S. The Results of the Initiative and Ref-
erendum in Oregon. Proceedings of the Ameri-
can Political Science Association, 1907. Vol. iv

Pp. 193-197. :
APPENDIX

A LIST OF THE MEASURES SUBMITTED TO THE PEOPLE OF
OREGON IN THE LAST FOUR ELECTIONS.

 

 

 

Pes. No.
; _ 1904.
Direct primary law with direct selection of United States}
GEDBCOMN sco coca chevesslg esse see castes aqssse nisi neacieDe aUsIoNcnG 56,205 | 16,354
Local-option liquor lawl... 1.2.2... ee ee ee ee 1 40,198
1906.
Omnibus appropriation bill, state institutions*............ 43,918 26,758
Equal. i constitutional amendment!.............. 36,902 47,075
Local-option b: pee by liquor people!............-- 35,297 45,144
Bill for purchase by state of Barlow toll road!............ 31,525 44,527
Amendment requiring referendum on any act calling con-
stitutional convention!.............. 002 e eee eee eee 47,661 18,751
Amendment giving cities sole power to amend their charters | 52,567 19,852
Legislature authorized to fix pay of state printer!........ 63,749 9,571
Initiative and referendum to apply to all local, special anc
municipal lawsl.... 0... 2.16 47,678 16,735
Bill prohibiting free passes on railroads!................. 57,281 16,779
Gross-earnings tax on sleeping, refrigerator and oil-ca’
companies!........... wesc i a gs ule sige Wa Lo ate Gung ea cece aay 69,635 6,441
Gross-earnings tax on express, telephone and telegraph
COMpanies ss sc eeseg es esc oasawe erie ares sig atewis-a siete suse 70,872 6,360
1908.
Amendment increasing pay of legislators from $120 to $400
PET SCSSION? 5 ses 5 oes sais cea MER epee Hye eee sen ee 19,691 68,892
Amendment permitting location of state institutions at
places other than the capital ..... «1.4 0ssgaecaesaas 41,971 40,868
Amendment reorganizing system of courts and increasing
supreme judges from three to five®..........---...---- 30,243 50,591
Amendment changing general election from June to Novem-
Per 8 scarce sister icnste esece co tidesiicienn Saya dysidgenssas onesistaprercy ans galaees Sata 65,728 18,590
Bill giving sheriffs control of county prisoners?........... 60,443 30,033
i is required to give public officials free passes?...... 28,856 59,406
Bill appropriating $100,000 for armories?............---. 33,507 54,848
Bill increasing fixed appropriation for State University from
$47,500 to $125,000 annually?..............ee sence eee 44,115 40,535
Equal-suffrage amendment}. ........-.-.--.--4566 ..-| 36,858 58,670
Fishery bill proposed by fish-wheel operators! ...| 46,582 40,720
Fishery bill proposed by gill-net operators!.............-. 56,130 30,280
Amendment giving cities control of liquor selling, pool
rooms, theaters, etc., subject to local-option law!....... 39,442 52,346
Modified form of single-tax amendment!................. 32,066 60,871
Recall power on public officials!............-.-200 e020 -- 58,381 31,002
Bill instructing legislators to vote for people’s choice for
United States senators!....... 0... e eee eee eee see ce eee 69,668 21,162
Amendment authorizing proportional-representation law!..| 48,868 34,128
Corrupt-practices act governing elections!...............- 54,042 31,301
Amendment requiring indictment to be by grand jury!....} 52,214 28,487
Bill creating Hood River Countyl!...........--------00-- 43,948 26,778
1910. 5
Amendment permitting female taxpayers to votel......... 35,270 59,065
Act establishing branch insane asylum in eastern Oregon’..| 50,134 41,504

 

1 Submitted under the initiative. ‘
2 Submitted under the referendum upon legislative act.
3 Submitted to the people by the legislature.

349

 
APPENDIX

 

 

YEs. No.
1910—Continued.

Act calling convention to revise state constitution®....... 23,143 59,974
Amendment providing separate district for election of each

state senator and representative?..................... 24,000 54,252
Amendment repealing requirement that all taxes shall be

equal and tniform?. wisic osc dx,oatang © m vials st aresens ive grandes we 37,619 40,172
Amendment permitting organized districts to vote bonds for

construction of railroads by such districts?............. 32,844 46,070
Amendment authorizing collection of state and county

taxes on separate classes of property’.................. 31,629 41,692
Act requiring Baker County to pay $1,000 a year to circuit

judge in addition to his state salary?.................. 13,161 71,503
Bill creating Nesmith County from parts of Lane and

DOG pl ashes 22 sas en eee ha oes RATS Ha OE Wiese ES 22,866 60,951
Bill to establish a state normal school at Monmouthl.,.... 50,191 40,044
Bill creating Otis County from parts of Harney, Malheur,

and. Granth sinc «nadie e cscs con yeeaee o Wipe RAG elon A MART a 17,426 62,016
Bill annexing part of Clackamas County to Multnomahl...| 16,250 69,002
Bill creating Williams County from parts of Lane and|

Douglas! 24 sain.o eaves isa sloats a saan wv oauls ond setaea Rauee A oF 14,508 64,090
Amendment permitting people of each county to regulate

taxation for county purposes and abolishing poll taxes!..| 44,171 42,127
Amendment giving cities and towns exclusive power to regu-

late liquor traffic within their limits!.................. 53,321 50,779
Bill for protection of laborers in hazardous employment,

fixing employers’ liability, ete... 00... 0c eee eee 56,258 33,943
Bill creating Orchard County from part of Umatillat......] 15,664 62,712
Bill creating Clark County from part of Grantl........... 15,613 61,704
Bill to establish state normal school at Weston!.......... 40,898 46,201
Bill to annex part of Washington County to Multnomah!..| 14,047 68,221
Bill to establish state normal school at Ashland!.......... 38,473 48,655
Amendment prohibiting liquor trafficl................... 43,540 61,221
Bill prohibiting sale of liquor, providing for search for

liquors, and regulating shipments of samel............. 42,651 63,564
Bill creating board to draft employers’ liability law for sub-

fission to lepislaturel.s is cicdis cxevansentud iwnies ons 32,224 51,719
Bill prohibiting taking of fish in Rogue River except with

OOK arid’ Mitel yc aaysie-siinecaves os ageavn «sunciat'e: RAdalatete 8 bcd phace AE 49,712 33,397
Bill creating Deschutes County out of part of Crook!..... 17,592 60,486
Bill for general law under which new counties may be created |:

or boundaries changed!......... 0... ccs eee cee eeee 37,129 42,327
Amendment permitting counties to vote bonds for per-

manent road improvement!..........- 000s eee eee ene 51,275 32,906
Bill permitting voters in direct primaries to express choice

for president and vice-president, to select delegates to

national conventions, and nominate candidates for presi-

ential electors) «ssc 56 jase sissciisie ie sie uensne er vwrdioa viacsi'e v.42 genie 43,353 41,624
Bill creating board of people’s inspectors of government,

providing for reports of board in official state gazette to be

mailed to all registered voters bi-monthly!............. 29,955 52,538
Amendment extending initiative and referendum, making

terms of members of legislature six years, increasing

salaries, requiring proportional representation in legis-

lature, election of speaker of house and president of senate

outside of members, etc.l..... 2... eee eee 37,031 44,366
Amendment permitting three-fourths verdict in civil cases!.| 44,538 39,399

 

1 Submitted under the initiative.
2 Submitted under the referendum upon legislative act.
3 Submitted to the people by the legislature.

350

 
INDEX

Advisory initiative and refer-
endum, in Illinois, 96, 97; in
Detroit, 97; in Grand Rapids,
98; in Buffalo, 99; in Chi-
cago, 99; in Canada, 100; in
Augusta, Maine, ror; in Ar-
kansas, 101; in various other
states, 101; in Wilmington,
Delaware, 101-103.

Alameda, California, direct
legislation in, IIO0-112, 115-
116; use of the recall in, 116.
Alexander, Mayor, Mayor
Harper replaced by, in Los
Angeles, 324, 325.

Arizona, doctrine of referen-
dum in, 135; proposed adop-
tion of the recall in, 182;
presidential veto of state-
hood bill in, 211, 212.
Arkansas, direct legislation in,
154.

Augusta, Maine, provisions for
special direct legislation in,
101.

Berkeley, California, move-
ment for direct legislation in,
123; initiative and referen-
dum established by, 154.
Berne, Canton of, in Switzer-
land, percentage of regis-
tered votes polled in, 32, 157.
Bonds, municipal, use of the
referendum for the approval
of, 7.

351

 

Borrowing, municipal, the ref-
erendum as a check upon, 39.

Boston, provisions regarding
nomination petitions in char-
ter of, 30; statistics of votes
on referenda in, 43; recall
election in, 45, 46; provisions
in charter of, concerning re-
call of mayor, 49, 50, 307,
308.

Boundaries, municipal, use of
referendum in determining
changes of, 7. .

Bourne, JONATHAN, Jr: A
Derence oF Direct Lects-
LATION, 194-210: the essen-
tials of popular government,
194, 195; differences between
individual and community
action, 195; the interaction
of community motives, 196;
the utilitarian justification of
direct legislation, 197; ex-
amples, 198, 199; the Colum-
bia River fisheries matter,
200, 201; effect of direct leg-
islation upon representatives,
202; educational value of the
initiative and referendum,
203; new arrangements not
incompatible with a sound
representative system, 204,
205; the experience of Ore-
gon, 206-211; the presiden-
tial veto of the Arizona
statehood bill discussed, 212,
INDEX

213; value of the recall, 213,
214; conclusions, 215.

Bradford, E. S., on signatures
required for initiative peti-
tions in commission-gov-
erned cities, 14.

British Columbia, use of the
advisory geferendum in, Ioo.

Brookline, Massachusetts, as a
type of New Engiand town,
24.

Bryce, James, on the failures
of city government in Amer-
ica, 93; on the success of
democracy in Switzerland,
155; on the American consti-
tution, 257.

Buffalo, use of the advisory in-
itiative in, 99.

Burke, Edmund, on the func-
tion of a representative, 28;
on the difference between
statesmen and__ politicians,
183, 184.

California, conditions in, prior
to 1909, 21; adoption of re-
call in, 43, 45; home-rule
charter movement in, 95; use
of advisory referendum in,
tor; direct legislation in
cities of, 107-116; use of re-
call in, 116; operation of in-
itiative and referendum in,
154; recall of officials in
cities of, 315-325.

Canada, use of advisory refer-
endum in, I00.

CatLeTt, Frep W.: THE ReE-

352

 

CALL IN SEATTLE, 326-341:
adoption of recall provision
in Seattle charter, 326; re-
call petitions, 327; defects of
original system, 328; method
of gathering signatures, 329;
verification of signatures,
330; withdrawals, 331; the
Gill and Dilling recall peti-
tions compared, 332-334; the
recall of Mayor Gill, 335-
337; the attempted recall of
Mayor Dilling, 338, 339; con-
clusions, 340, 341.

Cedar Rapids, Iowa, adoption
of initiative and referendum
by, 120.

Charters, municipal, use of ref-
erendum as a means of
adopting, 7.

Chicago, difficulty of getting
proper legislation for, 21;
use of advisory initiative and
referendum in, 99; Civic
Federation of, attitude of, on
direct legislation, 279.

Citizens’ Recall Association, in
Seattle, 338.

Cleveland, use of referendum
to prevent grant of franchise
in, 104.

Colorado, home-rule charter
movement in, 95; adoption of
referendum by, 135; direct
legislation established in, 154.

Columbia River, questions re-
lating to salmon fisheries in,
173; submitted to popular
vote, 200; as an example of
INDEX

matters passed upon at direct
elections, 286.

Commission government, rela-
tion of, to direct legislation,
13; use of initiative petitions
in cities under, 14; adoption
of recall in cities having, 43;
use of initiative and referen-
dum facilitated by, 118-122.

Connecticut, adoption of amend-
ments to constitution of, by
referendum, 128.

Constitutional limitations, rela-
tion of, to legislative de-
terioration, 18, 25.

Conventions, results of nomi-
nations in, 17.

Corrupt Practices Acts, as part
of a progressive programme,
54; adopted in Oregon, 144,
145, 228.

Councils, municipal, reduction
in size of, as an important
reform, 20.

Croly, Herbert, on the new na-
tionalism, 52.

Dallas, Texas, direct legisla-
tion in, 119; recall of school
directors in, 303, 304.

Danville, Illinois, election
frauds in, 207.

Davis, THomas A.: THE RE-
CALL AS A MEASURE OF Pop-
ULAR CONTROL, 313-320: con-
ditions in American cities
before the appearance of the
recall, 313; the recall in Los
Angeles, 314, 315; is the re-

 

call fair? 316, 317; the need
of the recall in New Jersey,
318.

Dealey, J. Q., on general ten-
dencies in state constitutions,
18.

DEFENCE oF Direct LxcisLa-
tion, by JonATHAN Bourne,
Jr., 194-210.

Democratic party, the present
opportunity of, 83, 84.

Delegates, election of, to na-
tional conventions, by popu-
lar vote, 173, 174.

Delegation of legislative
powers, constitutional objec-
tions to the referendum as
a, 8.

Denison, Texas,
and recall in, 119.

Denver, direct legislation in,
118, 150, I5I.

Des Moines, adoption of com-
mission government in, 13;
direct legislation established
by, 120, 154; form of ballots
in, 125; threatened use of re-
call in, 301, 302.

Detroit, use of advisory refer-
endum in, 97.

DEVELOPMENT OF DrreEct LeEc-
ISLATION IN AMERICA, by
Ropert TREAT PAINE, 93-124.

Dilling, Mayor, attempted re-
call of, in Seattle, 338-340.

Direct legislation. See Initia-
tive and Referendum.

Direct primaries, their relation
to other reforms, 54, 55.

referendum

353
INDEX

Education, political, value of
direct legislation as a means
of, 21, 24, 203, 221, 222; op-
portunities for, in Oregon,
ail.

EI Paso, use of the referendum
in, IIg.

Emergency laws, excluded
from scope of initiative, IT.

Employees, municipal, attitude
of, to the referendum, 38.

Employers’ liability, action of
Oregon voters on proposals
concerning, 263, 264.

Estacada, Oregon, use of the
recall in, 303.

Eureka, California, use of the
initiative and referendum in,
I10-112.

Experts, municipal, relation of
recall to question of, 48.

Fawcett, Mayor, recall of, in
Tacoma, 309.

Fisheries, in Columbia River,
questions submitted to voters
concerning. See Columbia
River.

Folk-Moot, Anglo-Saxon, meth-
ods of direct legislation in,
153.

Ford, Henry J., on powers of
party bosses, 79.

Fort Worth, Texas, use of the
referendum in, I19; attempt
to. recall a commissioner in,
302.

Franchises, the grant of, by
referendum, 7; direct legis-

 

lation in its relation to, II;
attitude of voters at refer-
enda concerning, 37; use of
initiative and referendum in
making grants of, 104, 223.

Fresno, California, direct leg-
islation in, 108, 111; use of
recall in, 116.

Fribourg, Canton of, in Swit-
zerland, absence of initiative
and referendum in, 156, 157.

Galveston, adoption of com-
mission government in, 13;
use of the referendum in,
118, 119.

Geneva, Illinois, advisory in-
itiative in, 96, 97.

Georgia, recognition of initia-
tive in first constitution of, 5.

Gill, Mayor, recall of, in Se-
attle, 328-337.

Gloucester, Massachusetts, rec-
ognition of direct legislation
in new charter of, 122, 154.

Grand Junction, Colorado, pro-
visions for direct legislation
in charter of, 154.

Grand Rapids, Michigan, ad-
visory initiative and referen-
dum in, 98.

Greenville, Texas, referendum
and recall established in, 119.

Harper, Mayor, recall of, in
Los Angeles, 303, 323-325.
Hartwell, E. M., on referenda

in Massachusetts, 33, 34.
Haverhill, Massachusetts, pro-

354
INDEX

visions for direct legislation
in new charter of, 122, 154.
Haynes, Georce H.: A YEAR
OF THE PEOPLE's RULE IN
OREGON, 233-278: prepara-
tions for the general election
of 1910, 233; publicity en-
gineering, 234; the People’s
Power League, 235; ex-
amples of measures  sub-
mitted, 235-240; analysis of
chief: proposals, 241-249; the
campaign of I9I10, 249-253;
the campaign book, 254, 255;
effect of Corrupt Practices
Law in Oregon, 256; size of
ballot, 257; results of voting
on different measures, 258-
273; general conclusions, 274-
278.

Hotman, FREDERICK V.: THE
UNFAVORABLE RESULTS oF DI-
RECT LEGISLATION IN ORE-
GON, 279-297: political prob-
lems of Oregon, 279; Ore-
gon’s lessons for other states,
280, 281; ten years of direct
legislation, 282; its short-
comings, 282, 283; size of
votes polled, 284, 285; ex-
amples of measures sub-
mitted to the people, 286; the
case of the University, 287,
288; the single-tax proposal,
288, 289; other proposals,
290, 291; virtual abolition of
trial by jury, 291-204; cum-
brous nature of ballots, 295;
summary of results, 296, 297.

 

Home-rule charters, adoption
of, by referendum, in Mis-
souri, 95; in California and
other states, 95.

Houston, Texas, provision for
referendum in charter of, 119.

Illinois, provisions relating to
advisory referendum in, 12,
96, 97; public opinion law in,
99; proposals to adopt man-
datory initiative and referen-
dum in, 281, 282.

Indiana, adoption of advisory
initiative by, 101: popular
approval of public service
franchises required by laws
of, 104.

Initiative and Referendum,
definition and early history
of, 1-6; development of, in
the United States, 7-15; ex-
tension of, to cities, 97-100;
use of, in recent years, 235-
256; part of Progressive pro-
gramme, 54-64.

Arguments for: general,
18-24; an effective agency of
popular responsibility, 85-
90; not antagonistic to rep-
resentative government, 146-
149; voters will not act hast-
ily, 196-198; examples of im-
provements secured by use of,
199-201; as a check on self-
ish legislation, 202; as an
agency of political educa-
tion, 203; secures protection
against insincere legislation,

355
INDEX

210; relieves _ legislatures
from pressure of political
bosses, 219; alleged defects
are easily remedied, 230; char-
acter of the measures actu-
ally submitted, 238-242; the
experience of Oregon has
been satisfactory, 273-278.
Arguments against: gen-

eral, 25-42; contrary to prin-
ciples of representative gov-
ernment, 166-169; will lower
the plane of popular repre-
sentation, 27, 178; places too
great a burden on the ballot,
29, 30, 221, 222; does not
weaken influence of political
organizations, 31; American
experience with local refer-
enda, 33, 34, 295, 2906; does
not permit a full expression
of electoral opinion, 40, 284,
285; abolishes distinction be-
tween constitutional and or-
dinary laws, 41, 129, 130; en-
courages ill-considered legis-
lation, 221 ; requires improve-
ment in details, 223; loose
and careless phraseology of
measures submitted, 282,
283; causes delay in urgent
matters, 287, 288; has been
highly unsatisfactory in Ore-
gon, 289-295.

Intropuctory, by W. B. Mun-
RO, I-5I.

Iowa, adoption of recall in, 43;
initiative and referendum on
franchises in, 103, 104; rela-

 

tion of direct legislation to
commission government in,
120,

Issues oF ReForM, by Woop-
row WILSsoN, 69-91.

Jefferson, Thomas, political
ideas of, 163, 167.

Jounson, Lewis Jerome: D1-
RECT LEGISLATION AS AN
Atty oF REPRESENTATIVE
GovERNMENT, 139-163: the
need of political reconstruc-
tion, 139, 140; the funda-
mental defect of modern
legislative mechanism, 140,
141; the proper channels of
popular control, 141-143; the
Oregon system, 144, 145; not
antagonistic to representative
government, 146-149; actual
results of direct legislation,
I50, I51; what the system
can achieve, 151-153; its re-
sults abroad, 154-158; the
problem in America,. 1509,
160; American political ideals
as stated in the constitution
of Massachusetts, 161; con-
clusions, 162, 163.

Judiciary, proposed recall of,
184-186. See also Recall.
Junction City, Oregon, recall

of mayor in, 303.

Kansas, advisory initiative in,
IOl.

Kansas City, home rule charter
system in, 94; direct legisla-
tion and the recall in, 122.

356
INDEX

Labor, organized, attitude of,
to direct legislation, 38, 262.

Landesgemeinde, Swiss, de-
velopment of direct legisla-
tion idea in, 153.

Leavenworth, Kansas, referen-
dum in, 121.

Legislatures, decline in capacity
of, 17; lack of leadership in,
18; present prestige of, 25;
centralization of responsibil-
ity in, 75; proposed reorgan-
ization of, as exemplified in
Oregon, 244-246. See also
Representative Government.

Lewiston, Idaho, establishment
of initiative and referendum
in, 121; recall in, 305.

Limitations, constitutional. See
Constitutional Limitations.

Lincoln, Abraham, political
ideas of, 140, 167; would
have been subject to recall,
184.

Lincoln, Nebraska, referendum
in, 105.

Liquor laws, referenda on, 33,
250, 251.

Long Beach, California, estab-
lishments of initiative and
referendum in, I10, 111; re-
call in, 116.

Los Angeles, adoption of recall
in, 42; recall put in opera-
tion by, 45; ‘initiative and
referendum in, 108-114; re-
call of Mayor Harper in,
116, 303, 321-325; procedure
in filing recall petitions in,

 

314-316; removal of a mu-
nicipal councillor in, 322,
323.

Lowett, A. Lawrence: THE
REFERENDUM IN THE UNITED
STATES, 126-138: the adapta-
tion of an institution to its
environment, 126; the early
use of the constitutional ref-
erendum in Massachusetts,
127; its spread and subse-
quent development, 128; its
extension to ordinary law-
making, 129; the referendum
in actual operation, 130-132;
its present extent, 133-135;
the experience of Oregon,
135-137; the value of Ameri-
can experience, 138.

McCatit, SAMUEL W.: REPRE-
SENTATIVE AS AGAINST DiREcT
LEGISLATION, 164-193: the
novelty of direct legislation
proposals, 164; the “Progres-
sive” propaganda, 165; the
political ideas of Madison
and Jefferson, 166; what
the framers of the federal
constitution sought to do,
167, 168; the essential aims
of government, 168; the indi-
vidual as the chief end of
government, 169; the initia-
tive analyzed, 170, 171; the
Oregon experience, 172; the
Columbia River fisheries em-
broglio as an example, 173;
relation of direct legislation

357
INDEX

to the rights of minorities,
174; general shortcomings of
the initiative, 175, 176; limi-
tations upon a free use of
the referendum, 176, 177; its
effect in removing responsi-
bility from representatives,
178; the political indifference
of the electorate, 179; the
vice of over-legislation, 180;
the recall, 181; provisions
relating to it in Arizona and
Oregon, 182; its pernicious
features, 182-184; the recall
of judges, 185; the de-
mocracy of Athens, 186, 187;
the experience of Switzer-
land, 189-191; a plea for sane
methods of reform, 192, 193.

Maine, constitutional amend-
ments excluded from scope
of initiative in, 10; present
arrangements concerning di-
rect legislation in, 106, 154.

Maryland, early use of referen-
dum in, for adoption of stat-
utes, 6.

Massachusetts, adoption of con-
stitution by referendum in,
5; statistics of voting at ref-
erenda in, 33; incorporation
of cities by referendum in,
92, 93; provision for advis-
ory initiative in constitution
of, 101; use of referendum
in, in making constitutional
amendments, 127, 131, 132;
suggestion of recall in origi-
nal constitution of, 143.

 

Memphis, use of initiative and
referendum on municipal
franchises in, 104.

Michigan, home-rule move-
ment in cities of, 95; advis-
ory initiative in, IOI.

Mill, John Stuart, on popular
responsibility, 22.

Milwaukee, movement for di-
rect legislation in, 123.

Minnesota, home-rule move-
ment in cities of, 95.

Mississippi, use of popular in-
itiative for adoption of com-
mission charters in, 122.

Missouri, restrictions on use of
initiative in, 10; beginnings
of home-rule charter move-
ment for cities in, 94; refer-
endum adopted by, 135; use
of direct legislation by, 154.

Montana, limitations on use of
initiative petitions in, 10;
adoption of provisions. for
direct legislation by, 106,
135, 154.

Muwnro, W. B.: Intropuctory,
I-51: significance of the di-
rect legislation movement,
I, 2; reasons for its spread,
2-4; early examples of the
initiative and referendum, 5,
6; use of the constitutional
referendum, 6-8; application
of the mandatory referen-
dum to ordinary laws, 9;
machinery of direct legisla-
tion, 10, 11; the Illinois sys-
tem, 12; use of direct legis-

358
INDEX

lation in cities, 13, 14; rela-
tion of the system to repre-
sentative government, 15-18;
the steady reduction § in
powers of legislatures, 19,
20; arguments in favor of
the initiative and referendum,
20-24; arguments against,
24-32; Statistics of votes
polled at referenda, 33, 34;
nature of popular interest in
referenda, 35, 36; electoral
tendencies, 36-39; merits and
faults of direct legislation in
practice, 40-42; the recall,
42-50; history of the recall,
42, 43; machinery of the re-
call, 43-45; the recall in
operation, 44-46; arguments
for and against the recall,
47-51.

National conventions, election
of delegates to, by popular
vote, 55, 173, 174.

NATIONALISM AND POPULAR
Rue, by THEODORE RoosE-
VELT, 52-58.

Nebraska, direct legislation in,
105.

New England, direct legisla-
tion idea in town-meeting
system of, 153; use of initia-
tive and referendum in cities
of, 159-162.

New Hampshire, provision for
instructing representatives in
constitution of, 5; use of ad-
visory initiative in, 101;

 

amendment of constitution
by referendum in, 127.

New Jersey, agitation for
adoption of recall in, 316-
318.

New Mexico, referendum
adopted by, on admission to
statehood, 9, 135.

Newport, Rhode Island, sys-
tem of city government in,
122.

New York City, reduction in
powers of municipal council
in, 25, 26.

Nevada, advisory initiative in,
121; referendum adopted by,
135.

Nominations, direct, as a re-
medial measure, 18; prob-
lems of party organization
connected with, 78-81.

North Carolina, advisory in-
itiative in, IOI.

North Dakota, direct legisla-
tion provisions adopted by,
122.

Norway, democratic frame of
government in, 63.

Oberholtzer, E. P., on direct
legislation, 129, 130.

Ohio, advisory initiative in,
ol; use of the referendum
in, for grant of franchises,
104.

Oklahoma, requirement for in-
itiative signatures in, II;
provisions against frequent
resubmission of the same

359
INDEX

question to voters in consti-
tution of, 12; adoption of re-
call in, 43; home rule for
cities of, 95; initiative and
referendum adopted by, 106,
107, 135; issue of publicity
pamphlet in, 144-146; work-
ing of direct legislation in,
154.

Omaha, adoption of initiative _

and referendum by, 105.
Oregon, actual use of direct
legislation in, 14, 15; adop-
tion of recall by voters of,
43, 45, 182; home-rule move-
ment in, 95; direct legisla-
tion in, 106, 135-137, 176,
177; the recall arrangements
in, 135; Corrupt Practices
Act of, 144, 145; state pub-
licity pamphlets of, 144-146;
measures adopted by direct
legislation in, 154, 189, 200,
201, 204, 205, 217, 225-227,
233 ff., 258; probable results
of recall arrangements in,
182; statistics of referenda
in, 215, 224, 285, 286; extent
of representative lawmaking
in, 207; analysis of measures
submitted to voters of, 225-
227; campaign book of, 236;
People’s Power League
of, 235, 236; constitutional
amendment relating to ju-
dicial procedure in, 237, 238;
proposed reconstruction of
legislature in, 244-246; direct
legislation literature in, 254;

 

360

PAINE,

action of voters on proposed
employers’ liability measure
in, 263, 264; on taxation
measures, 265-268; summary
of results of direct legisla-
tion in, 273-278; population
and political problems of,
279; matter of University ap-
propriations in, 287, 288;
right of the citizen to trial
by jury impaired by popular
vote in, 289-295; actual use
of recall in, 303; application
of recall to judiciary, 305.
See also YEAR OF THE PEo-
PLE’S RULE IN OREGON and
UNFAVORABLE RESULTS oF D1-
RECT LEGISLATION IN OREGON.

Ropert TREAT: THE
DEVELOPMENT OF Direct LeEc-
ISLATION IN AMERICA, 93-
124: origin of the referen-
dum, 92; its relation to
American theories of govern-
ment, 93; beginnings in
America, 94, 95; the advis-
ory referendum, 96; use of —
the referendum in cities, 97;
votes at referenda in various
cities, 98-100; the referendum
in state constitutions, IoI;
referenda on ordinances and
franchises,. 102-104; spread
of direct legislation provi-
sions in city charters, 104-
110; initiative petitions, I11,
112; the experience of Los
Angeles, 112-114; rise of di-
INDEX

rect legislation in other Cali-
fornia cities, 115, 116; in
Oregon and Washington,
116, 117; in Iowa, Idaho and
other states, 118-121; in
Massachusetts, 122; the
Newport plan, 123; merits of
the system, 124, 125.

Pamphlets. See Publicity.

Parties, political, desirability
of, in the conduct of repre-
sentative government, 76, 77;
nominating machinery pro-
vided by, 78; realignment of,
83, 84.

Pasadena, California, direct
legislation in, 110-112; recall
in, 116.

Pennsylvania, provisions for
instructing representatives in
the constitution of, 5; pres-
ent legislative conditions in,
21; advisory initiative in, 101.

People’s Power League, in
Oregon, work of, for direct
legislation, 235, 236.

Petitions, percentage of signa-
tures required for initiative,
ir South Dakota, 9; in Ok-
lahoma, II; in various cities,
14, 111; difficulty of gather-
ing signatures for, 29, 30;
for setting the recall in oper-
ation, 43, 305-307;
number of signatures for,
223; method of obtaining sig-
natures for, 282; withdrawal
of signatures from, 331; the
experience of Seattle in the

24

proper

 

361

matter of supplementing
number of signatures on, 332.

Plymouth, Colony of, direct
legislation idea in, 153.

Portland, Oregon, direct legis-
lation in, 117, 150, 218; sta-
tistics of referenda in, 228,
229.

PracTICAL WorKINGS OF THE
INITIATIVE AND REFERENDUM
in Orecon, by JosepH N.
TEAL, 217-232.

Progressive party,
of, 53, 54, 64.

“Promise of American Life,”
by Herbert Croly, 52.

Proportional representation,
proposed in Oregon, 243, 244.

Public Opinion Law, in IIli-
nois, 99.

Public Welfare League, of Se-
attle, work of, in checking
signatures, 333; part of, in
recall elections, 336.

Publicity, method of, at di-
rect legislation elections, 11;
arguments for and against
submitted questions issued
in pamphlet form, 23; value
of, 203; various means of se-
curing, 208; experience in
the matter of, in Oregon, 233,
234, 254.

program

Recall, definition of, 1; origin
of, 42, 298; development of,
in America, 43; machinery
of, 44; actual use of, in
America, 45, 301-304, 323-
INDEX

325; as applied to the ju-
diciary, 88, 184-186; in Cali-
fornia cities, 116, 117; in Ore-
gon, II7, 205; as applied to
administrative officials, in
Washington, 118; in Massa-
chusetts, 143; in Arizona,
182; provisions relating to,
in the Articles of Confedera-
tion, 298; provisions against
the re-election of recalled of-
ficials, 310; constitutionality
of, 321; used successfully in
Los Angeles, 323-325; in Se-
attle, 326-341.

Arguments for: enforces
official responsibility, 46, 47;
allows lengthening of official
terms, 48; not likely to be
used injudiciously, 198; does
not result in frequent elec-

. tions, 213; analogy of office-
holding to private employ-
ment, 214, 215; its beneficial
results as shown by experi-
ence, 298-302, 312-315.

Arguments against: detri-
mental effect upon public of-
ficials, 48, 182, 183; probable
effect of, at critical periods,
‘in American history, 184; as
stated in presidential veto of
Arizona Statehood Bill, 212;
its expensiveness, 311; the
difficulties to which it leads

* in operation, 326-340.

RECALL, AS A MEASURE OF Pop-
ULAR ContTROL, by THOMAS
A. Davis, 313-320.

 

Recatt in Los ANGELES, by
Cuartes D. WIttarp, 32I-
325.

RECALL IN SEATTLE, by Frep
W. CATtTLETT, 326-341.

REcALL, UsE oF, IN THE UNITED
States, by Hereerr H.
SWAN, 298-312.

Referendum. See
and Referendum.

REFERENDUM IN THE UNITED
States, by A. LAWRENCE
LoweLL, 126-138.

REPRESENTATIVE AS AGAINST
Direct LecIsLation, by SAM-
vEL McCALL, 164-193.

Representative government, re-
lation of, to initiative and
referendum, 1-4; difficulties
in the way of legislation
under, 21, 22; true nature of,
according to Edmund Burke,
28; relation of recall to, 47;
relation of, to voters, 60, 61;
possible effect of direct leg-
islation on, 147, 148, 165-168,
203, 204, 231, 232.

Riverside, California, direct
legislation in, I10-112, 115;
recall in, 116.

RoosEvELT, THEODORE: Na-
TIONALISM AND POPULAR
Rute, 52-68: the meaning of
nationalism, 52, 53; the need
for a progressive national
policy, 53, 54; a programme
of progress, 54, 55; the value
of the initiative and referen-
dum, 56-58; the experience

Initiative

362
INDEX

of Oregon, 59; the faults of
representative legislation in
Practice, 60-62; the lessons
of history, 63, 64; the ends
which direct legislation will
achieve, 65-68.

Sacramento, California, direct
legislation in, 110-112.

San Antonio, Texas, referen-
dum in, 119.

San Bernardino, California, re-
call of councilmen in, 303;
direct legislation in, 110, 111;
tecall in, 116.

San Diego, California, direct
legislation and recall adopted
by, 110, 111, 116, 117.

San Francisco, initiative and
referendum in, 107, 108, IIT;
recall in, 116.

Santa Cruz, California, direct
legislation in, 110-112; recall
adopted by, 116.

Santa Monica, California, di-
rect legislation and recall es-
tablished in, 110-112, 116.
Seattle, use of recall in, 44, 45,
117, 118, 304, 326-341.
Senators, popular election of,
54, 55, 66, 67.

Sioux City, Iowa, direct legis-
lation and recall established
in, 120.

Sioux Falls, South Dakota, in-
itiative, referendum and re-
call adopted in charter of,
Iai.

 

Sources AND LITERATURE, 342-
347.

South Dakota, initiative and
referendum first applied to
ordinary laws in, 9; restric-
tions on use of initiative pe-
titions in, 10; adoption of
recall by, 43; nature of bal-
lot used in, 136; experience
of, with direct legislation,
154.

Spokane, Washington,
endum in, 118.

St. Joseph, Missouri, agitation
for direct legislation in, 123;
nature of recall procedure es-
tablished by, 305.

St. Louis, experience of, as a
home-rule charter city, 94.
Statutes, multiplication of, by
use of the initiative, 191, 192.
Swan, Herpert S.: THe Use
OF THE RECALL IN THE
Uwmitep STATES, 298-312: ori-
gin of the recall, 298; theory
on which its use rests, 209;
the infidelity of representa-
tives, 300; value of the re-
call, 301; does not interfere
with efficient officers, 302;
use of the recall, in San Ber-
nardino and Los Angeles,
303; other. examples, 303-
305; safeguards surrounding
the recall, 306, 307; recall
machinery, 307, 308; the fill-
ing of unexpired terms, 309,
310; objections to the recall,
311; its service in improv-

refer-

363°
INDEX

ing municipal government,
312.

Switzerland, early experience
with referendum in, 31, 32;
compulsory voting in cantons
of, 32; origin of recall in,
42; results of direct legisla-
tion in, 50, 154; aS a suc-
cessful democracy, 155-158,
189-191.

Tacoma, Washington, use of
recall in, 304; removal of
Mayor Fawcett in, 309.

Taxation, action of electorate
in matters of, 288, 289.

TEAL, JosepH N. (of Portland,
Oregon): THE PRAcTICAL
WorkINGs OF THE INITIATIVE
AND REFERENDUM IN OREGON,
217-232; beginnings of agita-
tion for direct legislation in
Oregon, 217; adoption of
the system, 217, 218; exten-
sion to cities, 218; reasons
for favorable action, 219;
objections to direct legisla-
tion stated and answered,
220, 221; changes suggested
in system, 222, 223; illustra-
tion of measures submitted,
224; nature of proposals de-
feated, 225, 226; nature of
proposals adopted, 227, 228;
municipal ordinances  sub-
mitted in Oregon, 228, 229;
general workings of system,
230, 231; its relation to rep-
resentative government, 232.

364

 

Tennessee, advisory initiative
in, IOI.

Texas, use of referendum on
matters of party policy by,
12; direct legislation in, I10,
IIl.

Toronto, Canada, use of ad-
visory referendum by, 100.
Town government, in New
England, the referendum as
an essential feature of, 24,

63, 72.

UNFAVORABLE RESULTS OF DI-
RECT LEGISLATION IN OREGON,
by Frepertck J. Horman,
279-297.

UsE oF THE RECALL IN THE
Unitep States, by HERBERT
S. Swan, 298-312.

Utah, adoption of initiative
and referendum in, 9, 135.

Vallejo, California, initiative
in, 108, 111; recall in, 116.
Vanderburg, Senator, resolu-
tion introduced in Oregon

legislature by, 217.

Vermont, advisory initiative in,
IOI.

Victoria, British Columbia, use
of referendum in, 100.

Vidette, The, its early ad-
vocacy of direct legislation
in Oregon, 217.

Voters’ League, of Los An-
geles, 113.

Voting, preferential, 20.
INDEX

Waco, Texas, use of referen-
dum in, II9.

Washington, state of, adoption
of recall in, 43, 118; direct
legislation in, 117, 118; mu-
nicipal officials recalled in,
304.

Wichita, Kansas,
provision in, 127.

Wilmington, Delaware, provi-
sions for initiative and refer-
endum in, I0I-103.

Witson, Wooprow: Tue Issues
oF RerorM, 69-91: deteriora-
tion of representative ma-
chinery, 69, 70; old formulas
of government, 71, 72; the
irresponsibility of governing
organs, 73, 74; the absence
of real legislative leadership,
75; public opinion and po-
litical parties, 71-77; defects
of present-day nominating
machinery, 78, 79; bossism
in politics, 80; the American

referendum

 

political awakening, 81, 82;
the opportunity it affords, 83,
84; the remedies, 85, 86; di-
rect legislation as an effec-
tive agency of popular re-
sponsibility, 87; the recall,
88; the curbing of privilege,
890, 90.
On merits of direct legisla-
tion, 174, 175.
Winnetka, Illinois, system of
pledging candidates in, 96.
Wisconsin, progressive legisla-
tion in, 54; use of initiative
in, 122, 123.

Woman suffrage, in Oregon,
253; effect of, in Seattle, 332.

YEAR OF THE PEoPLE’s RULE
IN OreGoN, by Georce H.
HAYNES, 233-278.

Zurich, Canton of, in Switzer-

land, direct legislation in,

157.

a)
 

 

NATIONAL MUNICIPAL LEAGUE SERIES
Edited by CLINTON ROGERS WOODRUFF

Secretary of the National Municipal League

 

 

City Government By Commission
Edited by CLinron RocEers WooprurF. 12mo. Cloth,
$1.50 net; by mail, $1.62.

A complete history of the Commission Government movement, showing the
fruits of the latest experience and the most modern thought on the subject.
The aim has been to state fairly both sides of the question. The book gives
in compact form a clear definition and description of the system, a discussion
of the principles underlying it, arguments for and against it, accounts of its
actual operation, and a summary of the results which have followed its appli-
cation. Included, also, are texts of several typical commission charters, impor-
tant tables, showing the features of cities which are now governed by commis-
sions, and a large amount of statistics.

The Initiative, Referendum, and Recall
Edited by Witt1am BenNEeTT Muwro, Assistant Pro-
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This volume explains in fullest detail the principles of the methods of direct
legislation, traces the history of the development in America, and gives in com-
pact form the arguments for and apne’ the initiative, referendum, and recall,
and the results of the operation of one or another of them in certain places.
The book contains the valuable and important papers on the subject of govern-
ment which have been presented to the National Municipal ergs by such
eminent publicists as Colonel Theodore Roosevelt, Governor Woodrow Wilson,
President_ Lowell of Harvard, Congressman McCali, Professors Johnson and
Haynes, Robert Treat Payne, and others.

The Regulation of Municipal Utilities
Edited by CiypE L. Kine, of the Wharton School of
Finance and Commerce, University of Pennsylvania.
12mo. Cloth, $1.50 net; by mail, $1.62.

This volume covers, as the title indicates, the whole subject of municipal
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half of the book has been written by the editor himself, and the remaining chap-
ters consist of important contributions to the subject by such authorities as
Dr. Delos F. Wilcox, of the Public Service Commission of New York City; Hon.
B. H. Meyer, of the Federal Court of Commerce; J. W. S. Peters, President
of the City Club of Kansas City; J. P. Easton, Secretary of the Franchise League
of Boston; Dr. Robert H. Whitten, of Public Service Commission No. 1, and
others.

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The Southern South

By ALBERT BusHNELL Hart, LL.D., Ph.D., Litt.D.,
Professor of History at Harvard University ; President
American Historical Association. With colored map.
1zmo. Cloth, $1.50 net.

‘*Mr. Hart chooses as his field the far South, purer in
Southern strain than the modified borderland between North
and South.. Out of its foundation of climate, soil and topog-
raphy are rapidly drawn occupation, habit, disposition, out-
look and temperament of the Southern people. This is the
present common highway of investigation, yet not all set out
so briskly, or ‘make so straight a course, or attract so close
attention in the passage. The people are themselves classified
sharply as whites and negroes. An examination and discussion
of the Southern temperament, ‘psychologically and historically
based, makes a chapter of deep interest, that of the character
of the negro another. The remainder of the study is given up
to the supreme problem of the relation of the races in the
economic and moral development of the South. The negro
at home and in industry; race association and separation ;
white and negro education; crime, and peonage, are among
the pertinent and pressing subjects brought out here in a fair-
minded, unevasive spirit, buttressed by official evidence and
personal research.’’— Washington Star.

“‘One of the most important books on this issue that has
been published in recent years. . . . It is a broad-minded,
thoughtful inquiry that covers the whole field pretty thoroughly,
which considers the Southern view very fully, and incidentally
brings out the Northern viewpoint so far as it finds present
expression. His inquiry includes some features of the problem
not often considered.’ —Brookiyn Eagle.

 

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